Don’t get caught short

16th November 2023

Between TikToks, Facebook Reels and YouTube Shorts, the internet is full of pictures and mini-videos of food, cats, and anything else you can think of. Every moment of our lives is recorded, uploaded and commented on before its even really finished happening. For many this is just a private exercise, but online influencers have found a way to monetise their musings and wouldn’t think twice before whipping out their phone to collect a cheeky video to upload to one platform or another. Other professions aren’t safe either – most businesses these days have an online presence which includes promotional photos and videos.

But what if there was reason to think twice?  Works protected by copyright are literally everywhere – that advert on the wall, the television screen in the background, that song playing in the distance.  How can anyone post anything without living in fear of an angry letter from an intellectual property lawyer?

Never fear, the Copyright, Designs and Patents Act (affectionately known as the CDPA) is here to help. Under section 31 CDPA copyright in a work is not infringed by its “incidental inclusion” in an artistic work, sound recording, film or broadcast.  Incidentally, “incidental” can be slightly tricky to define.  Whether inclusion is incidental will depend on the circumstances, but largely comes down to the resaon the copyright work was included.  If the copyright work is the reason you’re making a video you might want to think twice before posting. And if someone did decide to send you an angry letter about your post accusing you of copyright infringement, you wouldn’t be able to rely on this defence.

It’s important to know that the rule is different where it comes to music, and this is where people tend to get caught out. Section 31(3) CDPA says any musical work that is deliberately included in another work, doesn’t count as “incidental inclusion”, so would be a breach of copyright. So, if you’re making a video outside and someone starts playing a boombox while you’re recording, the music is in there accidentally (i.e. not deliberately) and you’re fine. If you deliberately decide to include any music in your content – say, adding background music, playing a song while your recording – you’ve breached copyright.  This exclusion was introduced because music lobbyists made a fuss, so there’s a healthy appetite for angry letters in the music industry.

If you need any advice about any of the above, get in touch at

Elizabeth O’Leary Intellectual Property Solicitor

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