The Intellectual Property Enterprise Court has recently held that an interactive ‘Only Fools The (cushty) Dining Experience’ (OFDE) infringed the copyright in the ‘Del Boy’ character and committed passing off in relation to the BBC comedy show Only Fools and Horses (OFAH).
OFDE is an interactive dining experience where customers dine and watch actors play the roles of various original characters from OFAH. OFDE, the defendants in this case, did not seek permission from Shazam Productions Ltd – a company run by the estate of OFAH writer John Sullivan and who own the IP in OFAH – which led to them being sued for copyright infringement and passing off in 2019.
This case is of interest because the Court dealt with the various fair dealing copyright defences. However, this article solely focuses on the copyright claim and not the fair dealing defences. Further, this article will not deal with OFAH’s successful passing off claim.
In relation to the copyright claim, the claimant argued that copyright subsisted in each script, the body of scripts and the character Del Boy. Each script was held to be a dramatic work under copyright law; however, the Judge rejected the argument that the body of scripts together could be protected by copyright.
In considering whether copyright could protect Del Boy, a fictional character from a dramatic or literary work, the Court had little precedent from UK copyright law and therefore applied the two-stage test from the Cofemel case. The requirements for the two-stage test are:
Taking the above requirements in turn, the Judge held that Del Boy was an original creation by John Sullivan, thus satisfying the originality requirement. Reasons for this included that Del Boy was a “fully rounded character” with a detailed backstory, Sullivan basing the character off his experience growing up in South London in the 1950s and 60s, Del Boy’s unique character and Del Boy’s use of mangled French to appear sophisticated.
The identifiability requirement was also satisfied. In deciding this the Judge stated that the features of Del Boy which constitute his character (as put forward by the claimant), are “precisely and objectively discernible in the Scripts”. The main point here was whether Del Boy as a character could be distinguished from the contribution of actor Sir David Jason who played the role – the Judge found they could be distinguished.
With both requirements satisfied, the Judge held that the character of Del Boy is protected as a literary work under UK copyright law.
As copyright subsisted in the character and scripts it was held that there had been substantial copying of the character Del Boy in the OFDE script and performance. There had also been indirect copying of the OFAH script by the defendants.
The most interesting aspect of this judgment is that Del Boy, a fictional character, is capable of being protected by copyright as a literary work. This now sets a precedent for future television shows and perhaps other forms of media to argue that their fictional characters are protected by copyright. The main hurdle will be proving that the character is an original creation, especially if the threshold requires the combination of factors the Judge pointed to for Del Boy.
Another important point is that the Courts are now using the two-stage test in Cofemel to expand the list of works capable of being protected by copyright. This shows that UK copyright law is developing to include a wider range of works into the closed list provided in the CDPA 1988.
This case emphasises the importance of seeking a licence from the copyright owner of a work before doing any of the acts restricted by copyright. If OFDE sought a licence from OFAH to use the characters, scripts etc. they could have avoided a lengthy litigation battle and looking like fools.
Written by Saad Khan – Trainee Solicitor
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