The respondents published articles including pictures which themselves included the claimant’s logo. The claimant sought damages for breach of copyright. The defendant claimed protection under section 31 on the basis that the inclusion of the marks was incidental.
Held: There was no disjunction in principle between the words ‘incidental’ and ‘integral’ within the section. The emblem and badges could be both ‘an integral part of the artistic work’, and yet be incidental to that work. Chadwick LJ: The question of whether there was incidental inclusion: ‘is to be answered by considering the circumstances in which the relevant artistic work – the image of the player as it appears on the sticker or in the album – was created’ And whether or not the inclusion is incidental ‘turns on the question: why – having regard to the circumstances in which the [allegedly infringing work] was created – has [the original copyright work] been included in [the former].’ Mummery LJ: ‘incidental is an ordinary descriptive English word . . The range of circumstances in which the word ‘incidental’ is commonly used to describe a state of affairs is sufficiently clear to enable the courts to apply it to the ascertainable objective context of the particular infringing act in question.’
Judges:
Lord Justice Brooke Lord Justice Mummery And Lord Justice Chadwick
Citations:
[2003] EWCA Civ 995, Times 17-Jul-2003, Gazette 18-Sep-2003, [2004] FSR 1
Links:
Statutes:
Copyright, Designs and Patents Act 1988 31
Jurisdiction:
England and Wales
Citing:
Cited – IPC Magazines Limited v MGN Limited ChD 1998
The court interpreted the word ‘incidental’ in the section as meaning ‘casual, inessential, subordinate or merely background’ . .
Cited by:
Cited – Fraser-Woodward Ltd v British Broadcasting Corporation Brighter Pictures Ltd ChD 23-Mar-2005
The claimant asserted infringement of copyright by the defendants in photographs of the family of David Beckham. The defendant admitted using the photographs but asserted that no permission was required since the use was a fair dealing.
Held: . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 07 June 2022; Ref: scu.184453