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Derek “Del Boy” Trotter would probably consider it lovely jubbly that a judge at the Intellectual Property Enterprise Court has recently defined his status as that of a “literary work” for the purposes of copyright law.
A claim for copyright infringement and passing off was recently brought by Shazam Productions, a company owned and controlled by Only Fools and Horses creator John Sullivan’s family, against the operators of an “interactive theatrical dining experience” called Only Fools The (cushty) Dining Experience where customers enjoyed a three-course meal while interacting with actors playing Del Boy and the rest of the Only Fools and Horses cast.
The lawyers for Shazam Productions claimed that the characters portrayed in the dining experience had the “distinctive character traits conceived by John Sullivan” and used their “signature phrases and ways of speaking”, including amongst other things Del Boy’s use of French to try to convey an air of sophistication. The dining experience defended the claim on the basis that their marketing expressly stated that they did not use scripts from the series and that they also used a disclaimer on their website terms & conditions stating that they were not affiliated with the television production.
One key issue was whether the scripts of Only Fools and Horses were “literary works” or whether they were “dramatic works”. In his ruling, the judge found that although the scripts of Only Fools and Horses were adjudged to be “dramatic works”, the Del Boy character in the scripts was adjudged to be a “literary work”. This ruling provides the Del Boy character with a higher standard of copyright protection as the character is protected in and of itself, rather than within the confines of a specific script or dramatic work. The judge made his finding that Del Boy was a “literary work” on the basis that it made little sense to say that the character was designed to be performed in the way that a “dramatic work” such as a screenplay or script is designed to be performed. This is the first time that UK law has recognised that fictional characters can be protected in this way.
After the judge had made that ruling, he then went on to find that the copyright in the Del Boy character had been infringed within a specific script of the dining experience. The judge further found that the scripts of the dining experience could not be defended on the grounds of parody or pastiche. A parody defence requires an expression of opinion on the original (parodied) work, expressed as humour or mockery. Mere imitation of a work of comedy (as was the case here) is not sufficient. A pastiche defence permits an imitation of the style of the original work but the end product must be noticeably different from the original work (which was not the case here).
Separately, the judge also found that the marketing of the dining experience amounted to “passing off”, which is to say the characters in the original television series were so similar in dress and appearance to the dining experience that, together with the use of the “Only Fools” name, the public might believe that the dining experience was officially authorised and associated with the original television show.
It will take time for the full impact of this case to emerge, as it is not currently clear whether a character that is less fully-drawn and fleshed out as Del Boy would also be protected in the same way. However, the ruling is important because it potentially gives creators and producers of television shows (and film or theatre) copyright protection for their characters as “literary works” in their own right, especially if those characters are distinctive, well-defined and well-known.
This is indeed cushty news for creators, writers and producers.
For advice in respect of protecting image rights, trade marks or any other intellectual property issue, please contact either James Sarjantson on 0113 201 0401 – ku.oc1701617840.fcl@1701617840nostn1701617840ajras1701617840j1701617840 or Thomas Taylor on 0113 204 0407 – ku.oc1701617840.fcl@1701617840rolya1701617840tt1701617840
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