Who: Heythrop Zoological Gardens Limited (t/a Amazing Animals),James Spencer Clubb v Captive Animals Protection Society
Where: Intellectual Property Enterprise Court (IPEC)
When: 20 May 2016
Law stated as at: 10 July 2016
The IPEC has refused to grant an interim injunction to Amazing Animals, a company which provides animals to the film and television industry. Photos were taken and shown to the public by investigators acting for the charity, Captive Animals Protection Society (CAPS). These photos allegedly show inhumane treatment of animals by Amazing Animal employees. Amazing Animals asked for an injunction to remove these photos from the public domain however the court refused to grant this.
Heythrop’s Zoological Garden Zoo (which trades as Amazing Animals) is closed to the public but holds some open days. The investigators from CAPS attended one of these open days and took photos. These photographs were used by the charity in articles which were posted on the Internet. CAPS say they show the animals being kept in inhumane conditions and being forced to perform tricks. CAPS’ articles were subsequently picked up by The Times and The Daily Mail.
Amazing Animals asked for an interim injunction based on three causes of action:
– Breach of contract
This argument was advanced on the basis that when the investigators paid the entry price, a ‘code of conduct’ was incorporated into the entry contract. This code prohibited uploading any photos to the internet or using the photos for any commercial or financial gain.
– Breach of confidence
Amazing Animals argued that the photographs should be regarded as embodying confidential information thus by publishing them CAPS was in breach of confidence. Amazing Animals claimed that the photos could be treated as confidential information even if the events in the images were not. CAPS denied use of the photos was a breach of confidence on various grounds including that the use made was in order to expose matters of specific public interest.
– Breach of performance rights
From an IP perspective, the salient point is that Amazing Animals also argued that pursuant to the Copyright Designs and Patents Act 1988 (CDPA) the animal show is a performance thus performer’s rights subsist. The act refers to ‘a live performance given by one or more individuals’. It argued that this right was breached as the show was filmed without consent. Again it relied on the code of conduct, which it said restricted this consent. CAPS denied an animal performance is capable of being a performance because the real performers were the animals. Justice Birrs suggested the performance would fall within the CDPA as although the animals were the key part of the show, without the human trainer, there would have been no show at all.
In relation to the interim injunction, Amazing Animals relied on the principles set out in American Cyanide  AC 396 and argued that if the injunction was not granted:
– there is a risk of irreparable harm to its business;
– this risk is high; and
– that that publication had already caused significant commercial damage to business.
CAPS contended that Amazing Animals’ underlying complaint was damage to reputation (defamation), and Amazing Animals’ application was an attempt to get around the rule in Bonnard v Perryman. This rule provides that interim injunctions to restrain a defendant from publishing are not usually granted in defamation cases.
CAPS relied on section 12 of the Human Rights Act 1998 which states that when a court is considering granting relief which may affect the right to freedom of expression, it should not grant this relief unless it believes the claimant is likely to establish that publication should not be allowed.
Justice Birrs found both parties had arguable cases in relation to the 3 grounds advanced. However, he refused to grant the injunction, relying on s12 of the Human Rights Act. He found that there was not sufficient likelihood that Amazing Animals would obtain a final injunction at trial based on any of the causes of action to justify the interference with journalistic freedom of speech which an interim injunction would involve.
Why this matters:
This case has a few take away points:
– From an IP perspective it appears a broader category of performance may be afforded protection moving forwards.
– In order to incorporate a code of conduct into a contract for entry onto private property, the code must be prominently displayed. As Amazing Animals found in this case, it is difficult to argue that these terms are incorporated otherwise.