15 Jul COPYRIGHT & PASSING OFF – ONLY FOOLS AND HORSES COPYRIGHT WIN SETS NEW PRECEDENT ON COPYRIGHT IN CHARACTERS
The High Court has ruled that an ‘interactive theatrical dining experience’ marketed as a ‘loving tribute’ to the hit sitcom Only Fools and Horses breaches copyright law.
Shazam Productions, a company owned and controlled by the family of John Sullivan (the sitcom’s creator) commenced proceedings against the operators of the ‘Only Fools The (cushty) Dining Experience’. During the experience, audience members enjoy a three-course meal whilst actors embody the mannerisms, voices and catchphrases of much-loved characters Del Boy, Rodney, Uncle Albert, Cassandra, Boycie, and Marlene.
The Court held that Shazam held copyright in two different components of the sitcom. First, the Court held that each Only Fools and Horses script is a dramatic work, and that a substantial part of the scripts had been copied by the dining experience.
Second – and more significantly – the Court accepted the novel argument that the character of Del Boy was itself a literary work. The judge recognised that there was ‘surprisingly little discussion in English case law’ on whether copyright might subsist in a character, but noted that both US and German law permits copyright to persist in characters if they are sufficiently complex and distinctive, such as Astrid Lindgren’s Pippi Longstocking and Sir Arthur Conan Doyle’s Sherlock Holmes. The judge’s decision sets an important precedent in England and will heighten the importance of seeking permission from authors before evoking distinctive characters in new works.
The Court went on to reject the defences of fair dealing for the purposes of parody or pastiche, noting that the dining experience’s scripts did not evoke the sitcom to express humour, mock the show or critically engage with it: the humour was already contained in the borrowed material. In any case, the dealing was not ‘fair’ – the judge going so far as to find that the dining experience ‘amounted in substance to the creation of a new episode’ of the show. The decision is a rare instance of these particular fair dealing defences being considered by the courts.
Separately, Shazam Productions succeeded in a passing off claim. The judge accepted that members of the public would only want to see one dramatic performance featuring characters from the sitcom, and that there was a real likelihood of diversion of trade from the official Only Fools and Horses musical.
Commenting on the judgment, a director of Shazam remarked that ‘being a sophisticated man of culture, [Del Boy] would be particularly chuffed with being described as a “literary work.”’