Heythrop Zoo (trading as Amazing Animals) failed recently in an attempt to stop the publication of photographs and videos taken by a campaigning charity (CAPS) during a public open day. Some of the images showed animals performing tricks and some, CAPS said, showed inhumane conditions in which animals were kept.
Amazing Animals brought three claims against CAPS in the Intellectual Property Enterprise Court (IPEC).
First, Amazing Animals said that people buying tickets were bound by a contract including a Code of Conduct. The Code provided that photographs may only be used for personal use, may not be uploaded to the internet and may not be used for commercial or financial gain. Amazing Animals said the Code was prominently displayed around the zoo and, most importantly, at the entrance gate. CAPS was therefore in breach of contract.
Secondly, Amazing Animals argued the photographs should be regarded as embodying confidential information. Most were taken by two CAPS investigators during their visit, a few were obtained by CAPS from a whistleblowing ex-employee. Publication of the photographs would be a breach of confidence.
Thirdly, Amazing Animals argued that their entertaining animal show was a performance under section 180 of the CDPA 1988 of a “variety act or any similar presentation” in which performer’s rights subsisted. They argued the performer’s right was breached because the performance was filmed without the performer’s consent. Consent was limited by the Code of Conduct to filming for personal use and CAPS wasn’t filming for personal use.
Mr Justice Birss said it was “a bit like the well-known monkey-selfie case which arose in the USA.” Was the only performer a lion, in which case it was hard to see how there could be a relevant “performance”, or was the trainer, who took part in and directed the shows, a performer? The trainer, Mr Clubb, was a director of Amazing Animals and was one of the claimants in the proceedings. The judge decided Amazing Animals had a good case that performer’s rights subsisted (with Mr Clubb the relevant performer, not the lions) although CAPS also had a good arguable defence of fair dealing for the purposes of criticism or review.
Each side had an arguable case with a lot turning on whether the Code of Conduct had in fact been displayed at the entrance and thereby included in the ticket contract CAPS was bound by. This was an application for an interim injunction, not a trial, so factual issues such as that could not be decided. The judge took the view that, however arguable their case might be, Amazing Animals weren’t sufficiently likely to obtain a final injunction at trial to justify the interference with journalistic freedom of speech which an interim injunction would involve. He therefore refused an interim injunction.
This decision is an example of the significant role played by photographs (and video) in the development of media law. It shows a number of ways in which the right to publish images can be restricted by the rights of property owners. It also shows how difficult it can be to get an interim injunction when there is a public interest reason for publication, unlike the recent PJS “celebrity threesome” case which involved only celebrity gossip.