9 June 2022Copyright

‘Only Fools and Horses’ owners secure copyright win

The owners of the British sitcom “Only Fools and Horses” have emerged victorious in a copyright suit brought against an unlicensed interactive dining show.

Yesterday, June 8, Deputy High Court Judge John Kimbell found in favour of Shazam Productions—the owner of the copyright in the scrips for the sitcom and controlled by the family of show’s writer John Sullivan—against “Only Fools: The (cushty) Dining Experience”.

The deputy judge held that the lead character, Del Boy, is a copyright work.

Carl Steele, partner at Ashfords and head of the legal team representing Shazam, said he believed it to be the first time that an English court has recognised a fictional character in this way.

“The decision has major implications for those who wish to use such characters and who, in the past, might not have sought the copyright owner’s permission to do so,” said Steele.

“It is also, to my knowledge, the first time an English court has had to consider the law concerning ‘fair dealing’ of a copyright work for the purposes of parody or pastiche.”

Interactive dining show

John Sullivan, who wrote all episodes of the show, died in 2011. His family formed Shazam in 2003 to exploit the IP rights held in connection with “Only Fools and Horses”.

In 2018, the defendants developed an interactive dining show, using the characters from “Only Fools and Horses”. The actors in the show used the appearance, mannerisms, voices and catchphrases of the characters in the sitcom.

However, the characters were presented in the new context of an interactive pub quiz, which had not appeared in the sitcom itself.

In a lengthy judgment, Kimbell found that the scripts for “Only Fools and Horses” constituted a dramatic work under UK copyright law, while the character of Del Boy was a literary work capable of protection under EU copyright law.

“I have no hesitation in holding that if Del Boy is a protectable work under EU law, he can be properly subsumed under the concept of a literary work for the purposes of the closed list of protected English works,” said Kimbell.

He added: “The conclusion that Del Boy as a character as he appears in the scripts is a literary work does not require any strained interpretation of the Copyright, Designs and Patents Act 1988.”

Turning to infringement, the deputy judge said that the evidence of infringement of the Del Boy character by the defendants is “overwhelming and obvious”.

Kimbell set out a number of instances of copying before stating that this demonstrates a “conscious decision was taken to copy the names, mannerisms, catchphrases and full back stories of five of the main characters”.

In their defence, the creators behind the dining show attempted to argue their version was a parody or pastiche. However, the deputy judge dismissed the arguments.

“Works of parody can only facilitate dialogue or give rise to artistic confrontation if they are in some sense themselves constitute an expression of opinion expressed as humour or mockery,” said Kimbell. “I accept [Shazam’s] submission that mere imitation (of a work of comedy) is not enough to constitute parody.”

The court also found that the dining show’s marketing and name were contrary to the law of passing-off.

Finally, Kimbell added that there was a “real likelihood of diversion of trade”.

He said: “I consider that it is likely that some fans of ‘Only Fools and Horses’ would be diverted from purchasing tickets for the Musical by the existence of ‘Only Fools The (cushty) Dining Experience’.”

‘Substantial impact’ on parody and pastiche

A spokesperson for the dining show’s maker, Imagination Workshop, said: “This case has a substantial impact with all parody/pastiche and tribute shows, and this will have serious implications not just for ourselves, but for any and all companies who offer similar dining experiences, or even character impersonators.

“It is a shame that by creating something as a loving tribute to John Sullivan's work, we find ourselves in this situation; whereas if we were to make something that trashes the goodwill of these characters, that would be a fairer use of parody according to these findings.”

Andy Lee, partner at Brandsmiths representing the defendants, said the judgment “extends rights owners protection too far” and impedes freedom of expression “without justification”.

“This could stifle the creative industries and causes a disproportionate imbalance between IP rights and free trade,” said Lee.

Imagination Workshop was created by Australian company Interactive Theatre International (ITI), which is behind other parody shows including “Faulty Towers The Dining Experience”, also based on a popular UK sitcom.

Its productions have faced the threat of legal action before.

In 2016, "Fawlty Towers" star John Cleese considered suing over the “rip-off” parody.

And in 2018, ITI was contacted over its “Only Fools: The (cushty) Dining Experience” by the makers of the official “Only Fools and Horses: The Musical”.

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More on this story

28 July 2022   Parody, pastiche, and passing off all starred in this 'UK first', say Carl Steele and Christopher Fotheringham of Ashfords.
17 December 2018   Popular British sitcom “Only Fools and Horses” is at the heart of a copyright row between two theatre companies.
8 February 2016   The producer of US TV show “Glee” has lost an appeal against an earlier ruling in which it was found liable for trademark infringement following a battle against a London-based comedy club.