Every so often a remarkable case comes along that is both factually intriguing and offers the prospect of a judgment which promises to alter legal precedent. The Judgment in the case of Shazam Productions Ltd -v- Only Fools the Dining Experience Ltd and Ors [2022] EWHC 1379 (IPEC) may well have been precisely that. The legal principals involved are, for a case on the forefront of legal precedent, relatively straightforward and, in fact, the wording of the Judgment is a useful reminder of the application of copyright law.
By way of a very general background, the Claimant, Shazam Productions Ltd, is owned and controlled by the family of Mr John Sullivan, who is the mind behind the popular British Sitcom “Only Fools and Horses”. As described in the Judgment, the company was formed in 2003 to exploit the intellectual property rights held by Mr Sullivan in connection with Only Fools and Horses as well as some other shows written by him.
The Defendants supplied to customers a unique, interactive dining experience which was produced and marketed under the name “Only Fools the (Cushty) Dining Experience.” The idea was simple; guests would be served a meal while actors would perform around them using the “appearance, mannerisms, voices and catchphrases” of the Only Fools and Horses characters as well as acting out their back stories and relationships.
Shazam claimed that the Defendant had, in doing so, infringed upon the copyright in the lead character, Derek “Del Boy” Trotter. Why is this so significant? As remarked in paragraph 76 of the Judgment, there is “surprisingly little discussion in English case law or commentary on whether (and if so in what circumstances) copyright might subsist in a character from a dramatic or literary work”. In applying the relevant test, the court determined that while the scripts for the sitcom were original dramatic works for copyright purposes, the character of Del Boy was, in fact, an original, literary work. This is (probably) the first occasion in which an English Court has given protection in copyright to a fictional character. It, therefore, paves the way for copyright protection (and therefore claims for infringement) for other fictional characters.
Naturally, this will depend upon the facts of each case and the character in question. The idea must be original and unique and will likely depend upon the specific facts in each case. For instance, in this case, one might be forgiven for thinking that it was, in fact, the immeasurably brilliant talent of Sir David Jason who brought Del Boy to life. The Judgment, however, considered this and acknowledged the striking level of detail reflected in the scripts regarding the character, his traits, mannerisms, and relationships. I would suggest any future claims would, therefore, need to demonstrate a similar level of detail as this seems to have played no small part in assisting the court in concluding that Del Boy was indeed protected by a literary copyright.
While there were interesting arguments made in that case, particularly in respect of the defences to the claim and claims for “passing off,” the consequences of the judgment are clearly significant.
And isn’t it so very fitting that the character to have set such precedent is Del Boy? After all, he was so determined to make it big and here he is, so many years later, continuing to have such a lasting impact, albeit perhaps not in the way he might have imagined.
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