“Del Boy” Character Protected By Copyright – Only Fools Endorses

by | Jun 10, 2022 | Blog

Come on that’s a great pun. Only Fools Endorses.

Because in this case, the Only Fools (The Cushty) Dining Experience (OFDE) was not endorsed by the Family of John Sullivan, the writer of Only Fools and Horses, and so they got sued.

The IP Enterprise Court (IPEC) has upheld copyright infringement and passing off claims brought by the family of John Sullivan, the script writer for the well-known television comedy “Only Fools and Horses” (OFAH), against the defendants, who had developed an interactive dining show, “Only Fools The (cushty) Dining Experience” (OFDE), using OFAH characters.

The actors in the OFDE show used the appearance, mannerisms, voices and catchphrases of OFAH characters, including Del Boy, as they appeared in OFAH. The characters were presented, however, in a new context of an interactive pub quiz, which had not appeared in OFAH itself.

The IPEC’s findings included that:

  • Each OFAH script was a dramatic work within section 3(1) of the Copyright Designs and Patents Act 1988 (CDPA), but the combined body of scripts was not a literary or dramatic work in itself.
  • The character of Del Boy was a work which was protected under EU copyright law and could be properly subsumed under the concept of a literary work for the purposes of the closed list of protected English works.
  • There were a great number of commonalties between the OFDE script and the OFAH scripts, as a result of extensive indirect copying. What was taken was a substantial part of the OFAH scripts and infringed the copyright in those scripts regardless of whether Del Boy as a character was separately protected or not.
  • The defendants could not rely on the defences of fair dealing for the purpose of parody or pastiche because the use made of the characters, their jokes and catchphrases did not mock or critically engage with OFAH so as to amount to parody, and did not imitate the style of OFAH or arrange the elements in a medley or assemblage, so as to amount to pastiche.

The judgment is most notable for the court’s finding that the “Del Boy” character was protected as a literary work, a novel application of the law since, as the judge acknowledged, there was no English case law in which the point had arisen for decision.

Lessons for your business? Don’t copy things without permission; get a licence agreement in place.

(Shazam Productions Ltd v Only Fools The Dining Experience Ltd and ors [2022] EWHC 1379 (IPEC) (8 June 2022).)

Source: Practical Law


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