An antique mapmaker is suing Random House Films for copyright infringement after a map he made of the Caribbean island of Curacao was used as a prop in the 2012 comedy-drama ‘Lay the Favourite’ without his permission.

The film, starring Bruce Willis, Vince Vaughan and Catherine Zeta-Jones, follows the story of a New York bookie who moves his sports gambling operation to Curacao to circumvent US gambling laws.  The creator of the map, Vince Baker, claims the film infringes his copyright in it because it is ‘displayed prominently’ in several scenes and plays ‘a significant role’ in the film because it is used to emphasise the setting – and that the film makers should have known he owned the map and could have licensed it from him because his contact details were printed on it.

Baker filed the claim in the US District Court in Austin, Texas, where he is based.  He is also suing Amazon Prime and Netflix for making the film available on their streaming services and is seeking damages, costs and an injunction to prevent the further distribution of any version of the film that features his map.

Copyright law in the UK includes a statutory ‘incidental inclusion’ defence (at section 31 of the Copyright, Designs and Patents Act 1988) which may apply where a copyright work, such as a map (a graphic, artistic work), appears in a film in an incidental way.  This is a useful defence for content producers and is often relied upon, particularly in connection with documentary style filming where producers have little or no control over the surroundings in which they are filming.  With the exception of music, whilst intentionally including a copyright work within a film would not in itself preclude relying on the incidental inclusion defence, convincing a court that use truly was incidental may be more difficult.  Legal arguments as to whether use of a work is or is not incidental can be lengthy and complex.

Whilst the US does not have a directly equivalent statutory defence, the US ‘fair use’ doctrine may be relied upon in similar circumstances.  It will be interesting to see how the film makers respond to Baker’s claim and how the US courts resolve the dispute in this case.

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