Infringement - reproduction of football league emblem and individual club badges on stickers and in album - inclusion of badges and emblem not incidental in artistic work to justify inclusion

The Football Association Premier League Ltd and others v Panini UK Ltd: CA (Lords Justice Brooke, Mummery and Chadwick): 11 July 2003

The defendant distributed for sale in the UK collections of stickers and albums for insertion of the stickers; the stickers depicted famous football players including several Premier League clubs' players wearing the badges or crests of their clubs and the emblem of the Premier League.

Neither the reproduction of the badges, crests and emblem nor the distribution of them was licensed to the defendant by the claimants.

In an action brought by the claimants for the infringement of their copyright artistic works, the defendant claimed that such a reproduction or depiction was merely an 'incidental inclusion' within the meaning of section 31(1) of the Copyright, Design and Patents Act 1988.

The judge held that the defendant had infringed the copyright of the claimants.

The defendant appealed.

Martin Howe QC and Iona Berkeley (instructed by Dechert) for the defendant; Mark Platts-Mills QC and James St Ville (McCormicks, Leeds) for the claimants.

Held, dismissing the appeal, that in the absence of any special meaning attributed in the Act to 'incidental', the courts would apply it to the ascertainable objective context of the particular infringing act in question; that on an objective assessment, for the purposes of testing the incidentality, in the context of section 31 of the 1988 Act, of the circumstances in which the inclusion of the copyrighted work took place, the apparent objective of including the players with the badges or crests and the emblems in stickers and albums was to achieve an authenticity which would interest a collector; and that, accordingly, the inclusion was not incidental.