Given the UK’s rich literary history, it may be somewhat surprising to know that there was very little case law on whether copyright could subsist in a fictional character. However, on June 8, 2022, the UK courts finally addressed the issue of whether a fictional character can be protected under copyright law in Shazam Productions Ltd v Only Fools The Dining Experience Ltd & Ors  EWHC 1379 (IPEC).
The Court ruled that fictional characters can be copyrighted as literary works provided they are identifiable and original. This being determined, the Court ruled that the defendants’ infringements were “overwhelming and obvious” and that they had committed copyright infringement.
Only fools and horses (“only fools”) is a famous British television comedy series written by John Sullivan. The series took place between 1981 and 1991 (plus a final Christmas special in 2003) and followed a cast of iconic characters in their bids to become a millionaire by next year (every year). These characters included Del Boy, Rodney, and Uncle Albert. The rights to Only Fools belong to a company owned and controlled by the estate of the late Only Fools screenwriter, Shazam Productions Limited (“Shazam”).
In 2018, the defendant, Only Fools The Dining Experience Ltd (“OFDE”) (among others), opened an interactive dining show called “Only Fools The (cushty) Dining Experience,” featuring an OFDE-penned script using Only Fools characters, taglines, and themes.
Shazam sent a warning letter claiming they had copyright to:
the Only Fools scripts, both individually and as a whole;
the characters, including the characteristics of Del Boy in how they create his “personality”; and
Only Fools lyrics and theme song.
Shazam then sued the OFDE, which in turn asserted the defenses of parody and pastiche in relation to the dining experience.
Is a character capable of protection?
IPEC confirmed all of Shazam’s claims except for their argument that a set of scripts was a work as entiree. It held that the two cumulative conditions set out in Cofemel decision have been complied with, i.e.:
a work reflects the personality of its author (condition of originality); and
the object is identifiable with sufficient precision and objectivity (the identifiability requirement).
Judge Kimbell QC found that the character of Del Boy easily met the originality requirement, due to:
John Sullivan’s background and the character’s connection to his personal experience;
character complexity, including background, relationships, and motivations; and
the language used by Del Boy, including his mutilated French and his true impact on the development of the English language through words such as “lovely jubbly” or “plonker”.
Assessing the identifiability requirement, John Kimbell QC watched a number of episodes of Only Fools and was struck by the amount of description of Del Boy in the script, including his constant development throughout the series. .
Is a series of scripts a work as a whole?
Although the Court accepted that the OFDE script had elements of copyright infringement, it did not accept that a set of scripts, taken as a whole, enjoyed copyright protection. author. In doing so, he noted that only the individual scripts were meant to be run, and it cannot be suggested that they were meant to be run continuously. Although there are examples of literary works published in chapters and then republished as a single work, there is no indication that Only Fools was ever intended to be a unitary whole.
Did the pastiche or parody defenses apply?
The Court rejected both defenses raised by the defendant. In dismissing the parody defence, the Court made it clear that OFDE had no intention of making fun of Only Fools and that the humor came from Only Fools itself, not OFDE. As the work was not an expression of mockery or humor, OFDE could not be a parody. Also, since the work broadly picked up the characters of the work, it did not imitate the style and therefore was not a pastiche. Furthermore, the Court rejected the existence of “fair dealing” because the work was copied for commercial purposes.
The judgment has prompted conflicting views from legal commentators, but places copyright protection in the UK in line with cases in other countries, such as the Pippi Longstocking decision rendered in Germany (reference I ZR 52/12) and Sherlock Holm and Doctor Watson decision in the United States (Klinger v. Conan Doyle Estate, Ltd.).
While this is good news for all creators and helps defend unique fictional characters from unfair use, companies that have previously used literary characters in their marketing, promotions, and as themes will need to be extra careful when use a literary character without a license of the rights. incumbent.
To rely on the defenses of parody and pastiche, the use of literary characters must be more than blatant imitation, and must add additional features to the work in a humorous or mocking way. It’s also important to remember that there must be fair dealing in the use of the literary character, because failing this hurdle would fail both defenses.
Companies should therefore think carefully before deciding to use a literary character, and in any case should at least make the jokes original – “Alright, Dave”?