Retrospective - Incidental Inclusion of Copyright Protected Material

Not all infringement is necessarily wilful or intended, whether it is accidentally sharing a copyright protected image to a wider audience when it was intended to be shared to simply a small audience (albeit still, arguably, infringing copyright) or including works in your own that were not duly licensed as a matter of omission. As such the law does exclude liability for potential accidental inclusion, protecting those who have not intended to infringe copyright, but nevertheless have done so. How the law protects those who've incidentally included material in their works has been unclear due to the ambiguity of the provision in the Copyright, Designs and Patents Act 1988, but more clarity was shed on the provision in the early 2000s by the Court of Appeal.

The case dealing with incidental inclusion was Football Association Premier League Ltd & Ors v Panini UK Ltd, which dealt with collectible football stickers; a staple in many persons' youths (although this writer was more of the ice hockey disposition). Panini sold stickers, along with an album that you could collect them into, within the UK. The sticker collection comprised of nearly 400 football players from the English Premier League and other leagues, and the images used in the stickers contained the player wearing their respective club shirt. In many pictures the clubs' logos are fully visible, also sometimes including the Premier League logo on the sleeve of the football shirt. After a licence was issued to Topps Europe Limited (a tendering process that Panini was involved with) they created a similar sticker collection and accompanying album, and the Premier League too Panini to court for copyright infringement in relation to the club logos and the Premier League logo.

The main focus of the case was on whether Panini's inclusion of the logos in their stickers was copyright infringement, or whether it was protected under section 31 of the Copyright, Designs and Patents Act 1988. The provision allows for a finding of non-infringement in the event of a work's "...incidental inclusion in an artistic work, sound recording, film or broadcast"; however, what exactly amounted to an 'incidental' inclusion was uncertain.

Several draft stickers were rejected for good reason

Lord Justice Chadwick saw that the determination of whether a work does or does not infringe copyright has to be made "...considering the circumstances in which the relevant artistic work... was created". The circumstances would involve the relevant artist's mindset and potential reasons for the inclusion of a potentially infringing work in their work, as well as both commercial and aesthetic reasons for its inclusion. Emphasis is placed on the why, which undoubtedly will take into account any inclusions that are done merely feigning an incidental inclusion, when the true reason was to benefit from its inclusion.

In concluding the case Lord Justice Chadwick saw that, as the reason for the inclusion of the relevant club shirt was to make the images, and therefore the stickers, the most attractive to a would-be collector, it would be important for the shirts to be authentic and contain all logos. Due to this their inclusion could not have been purely incidental, as the objective of the images was to display the logos, although not prominently, but visibly enough for an informed collector to note them. His promptly then dismissed the appeal by Panini.

As can be seen incidental inclusion is by no means a straightforward assessment using bright line rules, but involves a more nuanced, objective assessment of a potentially infringing work's inclusion. Should the Premier League logo just have been present in an on-field advertising board in the background, or on a truck outside, arguably its inclusion would have been incidental. The reason why they were in the image was to give an aura of legitimacy, value and to effectively identify each player, team and league in the sticker set. Incidental inclusion doesn't come up often in IP, and this writer would love to see it applied in an Internet context somehow.

A Feast for the Eyes - Food Porn Banned in Germany?

Since the emergence of Instagram and other similar social networks, the power and marketability of pictures, especially of food, has sky-rocketed. This writer fondly remembers a time when he could go to a restaurant without having his friends take pictures of everyone's untouched dishes before tucking in. Alas, those days are gone, and with highly shared pictures comes a great deal of free marketing for the restaurants or eateries featured in those pictures. In other words, as Dominique Crenn, Chef de Cuisine at Atelier Crenn, put it: "Instagram came to give a voice to chefs and to the food they serve". An increase in sales or reservations can make or break a smaller establishment, while providing more established restaurants the financial boost they need among a more focussed, discerning consumerscape, and these images can be the difference between notoriety or infamy. Many would want to control this projected image, so could you exert ownership on photographs of your dishes?

In a somewhat interesting turn of events, albeit some 2 years ago, the German courts extended copyright protection to 'applied arts' under Directive 98/71/EC on the legal protection of designs in case I ZR 143/12 (press release on the decision in German here). This, according to many news outlets, covers food or plate arrangements, so long as they are not merely trivially thrown on the plate, but have an "advanced level" of design to them. This would entail more thought, and clearly is intended to cover those dishes that reflect a more artistic, sensual experience (for the eyes).

Floyd's pièce de résistance: the sad sandwich

As with many other types of artistic works, some dishes can exhibit a great deal of thought, ingenuity and planning, and this writer does appreciate a possible need to protect them under law. Even so, the enforcement of the new German law would be difficult, as many chefs would not sue those seeking to merely spread the name and design of their restaurant's dishes; however, should they want to keep new dishes or experience under wraps from the general public this route would seem much more attractive.

Under UK law it would be difficult to argue a case for the protection of food porn. Under the Copyright, Designs and Patents Act 1988, sculptures enjoy protection as artistic works under copyright. Should a chef make a particularly sculpture-esque food presentation, it would be possible for it to be argued as protectable under copyright, but with the caveat that the food sculpture would have to retain its artistic merit outside of just being sustenance. Similarly in the US their copyright legislation allows for the protection of sculptural works, so far as "...such design incorporates... sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article". This would mean that the sculptural aspect, i.e. the artistic features of the food piece, would have to exist outside of the food or its purpose (to nourish or to be enjoyed taste wise); a fact that would be difficult, albeit not impossible, to prove.

As one can see the protection of food porn is very difficult, even borderline impossible within the common law sans any major changes in the law. One could say this is the correct approach, since the design or food porn quality of any given dish is purely transient; an aspect of visual enjoyment prior to the consumption of the food, and intrinsically a part of the process of enjoyment in conjunction with the taste and feel of the item. Pictures of food are an important aspect of modern marketing, but it will be some time till protection is afforded to something more than the image of the dish.

Source: Eater