03/02/2020 Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) present. Really there is no argument that that sort of thing would qualify as a performance by an individual under s.180(2). However this first kind is not the sort of performance used which appeared in the CAPS articles. I have described for the purpose of comparison with the second kind, which is used in the articles. 38. The second kind is an event like a traditional circus act with a trainer and animals such as lions or tigers. The trainer in this case is Mr. Clubb. He is there in the cage with two sticks and causes the animals to perform tricks like standing on their hind legs on a stool with their front paws in the air. He is talking most of time. I think his words are directed at the animals rather than at the audience and that make this different from the first kind of performance I have described. It is clear that in this presentation the audience's attention is focussed on the animals much more than it was in the first kind of performance. One could not do this sort of thing without the big cats. Does that mean that the only performer is a lion? That is the question I have to decide. It is a bit like the well-known monkey-selfie case which arose in the USA. If there is no human performer at all then it is hard to see how there could be a "performance" under the Act. 39. The point was made that Mr. Clubb had his back to the audience a lot, but I do not regard that as relevant. Many performers perform with their backs to the audience, at least for some of the time. 40. I find that this is the kind of thing which the words "variety act or similar presentation" are apt to include. If one asks oneself what the human being is doing, the answer is that they are giving a performance, albeit they are doing it with animals. Without Mr Clubb there would be no show at all. Also without Mr Clubb there would just be two lions pacing in a cage. That would not be a performance at all. It is the intervention of the human being which makes the event worth watching from the audience's point of view. While clearly they are there to see the animals and not the trainer, the overall show involves both the human and the animal working together. It cannot be said that this is merely a performance by animals. It is a performance by both animals and a human being in which each plays a necessary part. I do not believe it is much of a stretch to say that this falls within s.180(2) (d) and, as Sir Richard Arnold identified, there are good policy reasons why it should. In my judgment there is a much more than a merely arguable case that performer's rights subsist. There is a good case. 41. The question is whether the performer's rights have been breached. That relates to s.182 and 183. The breach depends first on the question of consent and that, in turn, depends on the Code of Conduct which limited the consent to the taking of the photographs and the video for personal use only etc.. Clearly, the CAPS' investigators were not taking photographs for personal use; but, as I have said, that issue depends on the Code of Conduct being applicable and therefore turns on a disputed issue of fact. The question whether the extract from the performance which is shown in the video clips that have appeared on CAPS' website amounts to an infringement because it is a substantial part of the original performance is more than arguable. The extract may be a small part of the performance measured in time, but it is representative. The relevant test for substantial part is qualitative not quantitative. What has been taken, in my judgment, does represent the whole performance. 42. Critically though CAPS relies on fair dealing for the purposes of criticism or review. Section 30 of the 1988 Act provides for fair dealing in the context of copyright. For performer's rights the corresponding defence is in para. 2(1) of schedule 2 of the 1988 Act provides: "2 (1) Fair dealing with a performance or recording for the purpose of criticism or review, of that or another performance or recording, or of a work, does not infringe any [performer's rights] provided that the performance or recording has been made available to the public. […] (2) Expression used in this paragraphs have the same meaning as in section 30" 43. This defence was not addressed in detail in argument. Mr. Hirst submitted that CAPS had a good defence. Even if, which CAPS did not accept, the comments by CAPS on the use of animals in the performance to perform tricks were libellous, the use could still be fair dealing and the proper remedy for Heythrop would be in defamation, citing Pro Sieben Media v Carlton UK Television [1999] 1 www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html 7/13