In the highly anticipated case of Shazam Productions Limited v Only Fools The Dining Experience Limited and Others, the Intellectual Property Enterprise Court has held that ‘Del Boy’ is a copyright work. This is the first time that the courts in the UK have recognised that a fictional character can be an independent copyright work.
Shazam, the owner of the copyright in the scripts for the award winning television Only Fools and Horses, created and written by John Sullivan, brought proceedings against the operators of an interactive theatre dining experience, Only Fools the Dining Experience. The unlicensed performance featured iconic characters from the sitcom, such as Del Boy, Rodney and Uncle Albert, and their catchphrases, jokes and backstories but presented in the context of an interactive pub quiz, which never appeared in the sitcom.
Shazam alleged that the defendants had infringed copyright in each of the central characters and therefore sought to prevent the continued performance of the show. The defendants, however, put forward a defence to copyright infringement, arguing that their show amounted to a parody or pastiche, and that what they were doing was fair dealing.
Deputy High Court Judge John Kimbell upheld Shaam’s claim, agreeing that the character of Del Boy, which was taken as an example, was protected as a copyright work in itself, the first time that an English court has made this significant finding. In his view, extensive material taken from Shazam’s copyright works was found to have been used by the defendants. He also rejected the parody and pastiche defence. In his view, the defendants’ show was not a parody or pastiche, as those terms are properly understood, but a mere imitation. He therefore concluded that the show infringed Shazam’s copyrights and that its marketing and name was also contrary to the law of passing-off as it was liable to deceive and to divert custom to the defendants’ show from the West End musical recently launched by Shazam.
