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Copyright and performing animals

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13/06/2016

We have reported previously on the case of the “monkey selfie” – whether a monkey could own copyright in a photograph. As a variation on a theme, the UK Intellectual Property Enterprise Court has considered whether a routine involving an animal performing tricks was capable of attracting copyright protection.

In the case [1], the claimant zoo applied for an interim injunction to prevent the defendant, an animal protection society, from publishing photographs and video clips taken on the claimant’s premises. Some of the footage featured a trainer and an animal performing tricks. Much of the argument was around whether there was a breach of confidentiality – and the Court found that there was an arguable case on this – but one issue before the Court was whether there was copyright infringement, namely a breach of performer’s rights.

The legislation on performers’ rights is contained in section 180 of the Copyright, Designs and Patents Act 1988. As the Court noted, the definition of “performance” in section 180(2), did not include a “variety act”. However, the Court considered that it was justifiable as a matter of policy that animal acts should have performers’ rights in the same way as other acts. The claim of performer’s rights in this case was supported by the fact that the animals had been trained and it was this – the involvement of human trainers – that was critical. The claimant therefore had an arguable case on copyright infringement.

Though only an interim application, this is an interesting decision and does raise the question of where the line is drawn – how much involvement does there need to be by the trainer in order for a variety act involving animals to be capable of attracting protection as a performer’s right?

The reasoning of the Court is hard to argue with but nonetheless the decision may come as something of a surprise given the prevalence of the SIMPLY MARKET operations in France

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[1] Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & another v Captive Animals Protection Society (2016)

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