Benedict Cumberbatch and all those naughty theatre goers: can performers' rights be of any help?

Typical camera spotting shocked expression

Over the past couple of days several media [eg here, here, here ...] have reported the news of British actor and national treasure Benedict Cumberbatch's plea [available here] for help from his fans not to have his stage performances of Hamlet filmed.

The play opened at the London's Barbican last week [early reviews here]. Despite (misplaced) fears that the audience would not resist crying 'We love you Benedict!! ♥♥♥' (even) during the soliloquies, what has happened so far with people filming Benedict whilst playing Hamlet is even more troublesome.

"I can see cameras in the auditorium. It may not be any of you here but it's blindingly obvious," Benedict [♥, of course] said. "It's mortifying and there's nothing that's less supportive or enjoyable as an actor on stage experiencing that. What I really want to do is try and enlist you. I don't use social media and I'd really appreciate it if you did tweet, blog, hashtag the s**t out of this one for me."

Besides tweeting the s**t out of Benedict's wishes, could there be potentially anything else that might help him? Well, although it could not sound that friendly (or even plain wise) to threaten one's own fans with legal action, copyright - or, to be more precise, performers' rights [on which the most authoritative contribution from a UK perspective is likely this one] - could be potentially of some help in this case.

Of course: Merpel's favourite
theatre production

Readers with a particular fancy for the history of intellectual property will promptly recall that protection of performers is something relatively recent, at both national and international [only starting in 1961 with the Rome Convention] levels. With particular regard to the UK, although some form of protection - both criminal and civil - was already available to performers, it was only in 1988 with the adoption of the Copyright, Designs and Patents Act (CDPA) that performers were finally provided with the right to control, among other things, the recording of live performances.

Among other things, s182 CDPA provides that a performer's rights are infringed by a person who, without his consent, makes a recording of the whole or any substantial part of a performance directly from the live performance.

There are two questions that may arise here. The first is - similarly to 'ordinary' copyright infringement cases - what "substantial part" may mean in the aftermath of the decision of the Court of Justice of the European Union (CJEU) in Infopaq [here] and its progeny, ie BSA [here], FAPL [here], Painer [here], Football Dataco [here], and SAS [here]. The second is whether any defences may be potentially available to somewhat naughty audience members. 

In respect of the first question, even pre-Infopaq case law had clarified that substantiality has nothing to do with 'quantity'. As Lord Millett held in the seminal decision in this area, ie Designer Guild, substantiality "is a matter of impression, for whether the part taken is substantial must be determined by its quality rather than its quantity. It depends upon its importance to the copyright work. It does not depend upon its importance to the defendants' work". 

BFFs: Merpel and Benedict

In the post-Infopaq age [it is worth recalling in any case that CJEU case law recalled in this post refers to the InfoSoc Directive, ie the legal instrument by which the EU legislative implemented into the EU legal order not just the WIPO Copyright Treaty but also the WIPO Performances and Phonograms Treaty] it would appear that the making of a recording of any part of a performance which is sufficiently original could be potentially infringing.

This leads to the second question, this being what defences (contained in Schedule 2 CDPA) could be available to potential infringers.  In this specific case it would seem that - provided that the dealing at hand is fair - research and private study, and criticism, review, quotation and news reporting could be potentially invoked (yet whether successfully or not is open to discussion) by alleged infringers. This is also because the law provides that any contractual restrictions to such exceptions are unenforceable [see ss1C(4) and 2(1B) Schedule 2]. 

All in all, also considering the potential PR implications of suing theatre goers, it would appear that - besides asking for fans' help on social media, trying anything else may prove tricky. 

Hence, the answer to "Whether 'tis nobler in the mind to suffer // The slings and arrows of outrageous fortune // Or to take arms against a sea of troubles // And by opposing end them" seems to be more in the sense of the former, at least law-wise and despite how annoying (and frankly impolite) the practice of taking pictures and making videos during a theatrical performance is. 

But what do readers think?