In a recent case involving an animal act Mr Justice Birss in the High Court held that there was “much more than a merely arguable case” that performer’s rights subsisted in the act. The case inevitably calls to mind the well-known monkey–selfie case in the US in which it was held that the monkey could not own copyright in the photo.
The English case involved a zoo which provided animals to the film and television industry including lions, sloths, monkeys and tigers. Although it was generally closed to the public it sometimes had open days that included animal shows. On one such day investigators for an animal rights charity attended and took photographs and videos, which were published on the internet. The charity alleged the pictures showed that the animals were being kept in inhumane conditions.
The zoo argued (among other things) that showing the photographs and videos on the internet constituted a breach of performance rights in the animal show. The court had to consider whether an animal act could qualify as a performance for this purpose. The ‘performance’ in question was much like a traditional circus act with a trainer and lions. The focus was on the animals, but the court said the trainer was also an essential element – there could not have been any show at all without the trainer. It was also important that the show had been rehearsed. The judge came to the conclusion that there was a good argument that the act qualified as a performance by both animals and a human being and that this qualified for performer’s rights. As this was an interim application the judge did not have to give a final decision on this point; this will be for the court to do at the full trial.
What if the performance had been by the lions alone? For example, could a dog performing tricks on its own have performer’s right? The answer is almost certainly not. Birss J comments that if there had been no human performer at all then it is hard to see how there could be a ‘performance’ for this purpose, because performer’s right requires there to be a performance by an ‘individual’ and an animal is not an individual. However, if as is generally the case in Britain’s Got Talent, the trainer is part of the act then it would appear that there could be performer’s rights in the act as a whole.
Case: Heythrop Zoological Gardens Ltd (trading as Amazing Animals) and another v Captive Animals Protection Society [2016]
Tom Lingard