INCIDENTAL INCLUSION AND FAIR DEALING SAVE BBC

Decided yesterday by Mr Justice Mann, Fraser-Woodward Ltd v British Broadcasting Corporation and another [2005] EWHC 472(Ch) is the latest in a line of copyright infringement cases to raise the issue of how far an alleged infringer can rely on the sometimes unreliable defence of "incidental inclusion" of the allegedly infringed work in a work created by the defendant.

Brighter Pictures, a TV production company, used images of newspaper pages on which 14 photographs of the family of a well-known footballer and pop singer had been published under licence, in a television programme entitled ‘Tabloid Tales’ which was made for and broadcast by the BBC. Fraser-Woodward Ltd (FW), which owned the rights to those photographs, sued Brighter Pictures and the BBC for copyright infringement. The principal defences were fair dealing within s.30(1) of the Copyright, Designs and Patents Act 1988, and incidental inclusion within the meaning of s.31(1) of the same Act. The defendants argued that the purpose of the programme was to criticise and/or review tabloid journalism and the methods employed by the tabloid press and/or the celebrities featured in it to build and exploit a story to their advantage.

Fair dealing and incidental inclusion: where would the Beeb be without them?

Mann J dismissed FW's claim.

* The first 13 photographs was clearly used for the purpose of criticism or review within the meaning of s.30. The programme contained many shots of newspapers, their mastheads and their stories, together with their pictures. It also contained various film clips demonstrating the public presentation of, or public appearances of, the family. They were all there to demonstrate a certain style of journalism, the coverage of celebrity, and to comment on (in the form of criticism) that style as manifested in the relevant publications. There was nothing unfair about this use.

* The 14th photograph was included only incidentally. It was a small photo appearing within a newspaper headline. The focus of the filmed shot was on the headline, which appeared as an example of a sensational headline. In that context the small photograph was incidental: it was only there because it happened to be in the original.

The IPKat agrees. If in a blatant case of infringement like the Mandy Allwood case [1999] FSWR 610 the unauthorised use was fair, this case was ten times less likely to end up with a finding of infringement.

More on incidental inclusion here and here