What is incidental inclusion?
I get asked all the time about the concept of incidental inclusion and while it is a feature in the Copyright Act (Canada) that does allow the use of copyrighted materials without permission, I always caution clients to not rely on that. Essentially, it has to be incidental; i.e., not deliberate. So, that means if you intend it to be there, then you cannot really rely on incidental inclusion (also called de minimis in other jurisdictions).
The distinction of what is considered incidental inclusion is a legal distinction and one that should be made by the lawyer. It is not something that permits filmmakers just to include anything they want. It really comes down to very limited contexts in which something could be included through relying on incidental use as a means to clear something.
In documentaries, for example: if you’re filming in the real world and something enters the frame in which you didn’t obtain permission – something like that we would look at on a case-by-case basis and determine whether it may be considered incidental use.
The Copyright Act also includes exceptions to copyright infringement called fair dealing. Now, fair dealing has a very separate legal analysis than incidental use. So, if something does make it into the frame and it is not deemed to be incidental use, then perhaps you could explore whether it can be considered fair dealing and has a means to clear that item that made it into the frame without obtaining permission.
Nathaniel Lyman is a lawyer at Chandler Fogden Aldous Law Corporation in Vancouver, British Columbia, where he provides legal services exclusively in the areas of film and television. His clients include production companies, individual producers, animation studios, writers, directors, performers, and others in the creative fields. He was admitted to the British Columbia bar in 2013 after graduating from the Peter A. Allard School of Law at the University of British Columbia.
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