(1)Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film or broadcast .
(2)Nor is the copyright infringed by the issue to the public of copies, or the playing, showing or communication to the public , of anything whose making was, by virtue of subsection (1), not an infringement of the copyright.
(3)A musical work, words spoken or sung with music, or so much of a sound recording or broadcast as includes a musical work or such words, shall not be regarded as incidentally included in another work if it is deliberately included.
Cases considering section 31 3
[2003] EWCA Civ 995 · 11 July 2003Interprets
The section is treated as the statutory source of the incidental-inclusion defence. Its subsections were construed together to determine whether the copied emblems and badges were incidentally included and whether copies could be issued to the public. (see paras [18]-[20], [24]-[27])
The court interprets incidental inclusion by asking why the copyright work was included in the relevant artistic work, assessed objectively in its commercial and factual context. The inclusion of authentic club badges and the league emblem was essential to the purpose of the images and therefore outside the defence. (see paras [24]-[27])
The court interprets the provision as protecting the issue of copies only where the making of the relevant work was itself non-infringing under section 31(1). The relevant work was the image as it appeared on the sticker or in the album, not the original photograph. (see para [25])
The court confirms that incidental does not mean unintentional or non-deliberate. Read with section 31(1), the provision shows that deliberate inclusion may still be incidental in an appropriate case. (see para [24])
[2008] EWHC 1411 (Ch) · 24 June 2008
Applies the incidental-inclusion defence to the Anthem as captured in the player line-up. The inclusion was found entirely incidental. (see paras [197]-[207])
[2005] EWHC 472 (Ch) · 23 March 2005
Applied by asking why the photograph was included in the programme in its objective context. The small photograph within the kidnap headline was incidental, but the larger photograph accompanying the related newspaper story was not.
What each judgment says about section 31 is in the case-law panel in the full Act.