Count Binface: the IP dispute you weren’t aware of

The recent political news has been dominated by the decision of Nigel Farage to resign his seat as an MP and trigger a by-election in Clacton and re-stand, only to find his main rival for his seat in Parliament to be… a man in a bin costume.

What you might not know about Count Binface (real name: Jon Harvey) however, is that he had to undergo a ‘rebrand’ of sorts, following an IP dispute involving his original character, Lord Buckethead. Lord Buckethead was first utilised as a political character in the 1980s, however he was brought back to public life in 2017 by Jon Harvey, who stood as the character against Theresa May in her Maidenhead constituency. The character took on a life of its own after this infamous stunt, that is until filmmaker Todd Durham asserted his ownership of copyright in the character, and requested that Mr Harvey cease all use of the character, and Mr Harvey felt he had no option but to accede.

Mr Durham was able to assert his rights in the character because he was the original creator of Lord Buckethead, which featured in his 1984 film Gremloids. Mr Durham claimed that the character was protected by copyright, which he owned, and he was therefore entitled to stop Mr Harvey from portraying the character any longer. Was Mr Durham entitled to assert his ownership of the character in this way? Recent case law suggests that yes, he was. In Shazam Productions v Only Fools The Dining Experience[1], the IPEC held that the character Del Boy was protectable by copyright as a literary work, and the defendants were found to have infringed the copyright in the character by copying a substantial part of the character. A possible defence to copyright infringement considered by the court in Shazam Productions was that of fair dealing, in particular use for the purpose of caricature, parody or pastiche. However, the court found that such defences did not apply in this case, because the use of the copyright constituted an imitation of the original work; it was designed to replicate it without any transformative or critical purpose.

Whilst the fair dealing defence did not apply in Shazam Productions, that is not to say it would have necessarily failed for Mr Harvey had Mr Durham issued a copyright infringement claim against him, and Mr Harvey had invoked this defence. It would certainly have been an interesting test of the defence in the courts, particularly given the limited case law we have available on caricature, parody and pastiche. Ultimately, Mr Harvey decided to drop the Lord Buckethead character rather than challenge Mr Durham’s claims, citing a lack of legal knowledge, funds and appetite to fight, and Count Binface was born. Mr Harvey returned to challenge Boris Johnson under his new guise in Uxbridge in 2019, and the character’s notoriety has been steadily growing ever since. Now he takes on Farage in a battle for the ages, and it’s certainly going to be one to keep an eye on.

If you need IP advice, get in touch with our legal team at info@briffa.com or through our website form. Our IP experts are here to help.

[1] Shazam Productions Ltd v Only Fools The Dining Experience Ltd and others [2022] EWHC 1379 (IPEC)