03/02/2020 Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) 31. Section 180(2) provides: "(2) In this Part - 'performance' means (a) a dramatic performance (which includes dance and mime), (b) a musical performance, (c) a reading or recitation of a literary work, or (d) a performance of a variety act or any similar presentation, which is, or so far as it is, a live performance given by one or more individuals; […]" 32. For this case the relevant part of s180(2) is sub-paragraph (d) which refers to "a performance of a variety act or any similar presentation". Sir Richard Arnold is the author of a text book Performer's Rights, the fifth edition which was published in 2015. In paras. 2.15 to 2.17, he discusses the definition of performances of variety acts and the considerations which might apply. There Sir Richard explains that, if the word "variety" was given its ordinary English meaning as in a dictionary, this leads to a conclusion that the only things which could fall within the section would already have fallen within sub-paragraphs (a), (b) or (c) and so that construction makes "variety act" mere surplusage and would not be correct. I respectfully agree. 33. The learned author also explains that from his researches it would appear that the term "variety act" stems from a report of the Whitford Committee, which used the term "variety artistes" compendiously to refer to performers such as magicians, clowns, jugglers, acrobats and the like (and may ultimately derive from the name of a group called the Variety Artistes Federation mentioned in the Report of the Gregory Committee). Neither I nor counsel have done the research referred to by Sir Richard, but I have every reason to take it as accurate. On the face of it the reasoning produces a result which seem to me to be an appropriate way of looking at the meaning of this sub-section. 34. So far there has been no mention of what one might call an animal act, albeit that one does or did see them in circuses. There was reference in the argument before me to the well-known television programme, Britain's Got Talent, to illustrate the argument. It is fair to call Britain's Got Talent a variety show. If you watch it, you will see a succession of performers including singers, dancers and animal acts (usually dog acts). Why, one might ask rhetorically, should the animal acts not acquire performer's rights when the first two kinds clearly do? Sir Richard's book at para.2.33 addresses this issue, as follows: "It has been suggested that, in the context of circus performances, a performance by animals should nevertheless be regarded as a performance given by an individual, namely the trainer, notwithstanding that the animals are not individuals. This is to stretch the concept of an interpretative performance nearly to breaking point, but it may be justifiable on grounds of policy." 35. If I may say so, I see the force of the observations made there. 36. Turning to the performance in this case, the evidence is that these shows are rehearsed and are put on repeatedly more than once a day. That may be significant in that, whatever may be the answer to the question of whether improvisations ought to be protected by performer's rights, the fact that the presentation is rehearsed makes the claim to performer's rights stronger. 37. I have watched the videos (not the whole of the longer ones). The material can be divided into two kinds. The first kind involves a handler standing by an animal, such as a sloth, and speaking about it enthusiastically. While there may be no formal script, this is clearly something that has been rehearsed and would be described in ordinary language as a performance. I would hold that this qualifies as a performance by an individual within the meaning of s.180. The animal is almost like a prop although I would not go as far as calling it merely ancillary. The handler's performance is a key part of what the audience is watching. One could give a talk like this about a sloth without the sloth being physically www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html 6/13