Can a TV character be protected by copyright?
An interactive dining show titled “Only Fools the (cushty) Dining Experience” (OFDE) infringed copyright in the popular TV comedy “Only Fools and Horses” (Only Fools), Deputy High court Judge John Kimbell QC has ruled in a recent IPEC. He also found that there was passing off.
The case was brought by Shazam Productions, which was formed to exploit the IP rights of John Sullivan, the creator and writer of Only Fools.
Shazam argued that OFDE, which was developed in 2018, used recognisable characteristics of the original Only Fools characters, and relied on their backstories–even though the characters were presented in a new context (an interactive pub quiz) and OFDE did not use the script or music from the TV series.
The OFDE show was usually performed in hotel function rooms, with a script that gave the actors flexibility to interact with the diners. Its creators had previously produced a similar show based on another popular TV show, Fawlty Towers.
The judge found that, although the body of scripts for the TV series did not constitute a literary or dramatic work, each individual script was a dramatic work.
Moreover, based on the two-step Cofemel test, the character of Del Boy was a literary work as it was an original creation of John Sullivan, which was the expression of his own free and creative choices, and was clearly and precisely identifiable to third parties in the Only Fools scripts.
This conclusion is consistent with the German Supreme Court’s decision regarding the Pippi Longstocking character, and US decisions concerning Sherlock Holmes and Dr Watson.
The judge found that there was “overwhelming and obvious” evidence of infringement of the character of Del Boy: the defendants watched clips and entire episodes of Only Fools and some of the actors were superfans.
“The copying was far more than the substantial copying required for a finding of infringement.”
Regarding the scripts, there were significant commonalities between the copyright works and the OFDE script, including at least 10 original features that were copied: this represented a substantial part of the scripts.
The judge rejected OFDE's arguments in defence that the acts of copying were for the purpose of parody or pastiche.
He added that, even if they were parody or pastiche, the uses did not qualify as fair dealing because they failed steps 2 and 3 of the Berne three-step test (namely: (2) reproduction does not conflict with a normal exploitation of the work; and (3) does not unreasonably prejudice the legitimate interests of the right holder).
The judge found that Shazam owned goodwill in the Only Fools name and the leading characters, and that there was misrepresentation and damage–insofar as OFDE might divert some fans from purchasing tickets for the authorised Only Fools musical in the West End.
The judgment is particularly notable for finding that copyright can subsist in a character from a dramatic or literary work. As the judge noted, there is surprisingly little discussion in English case law or commentary on this question. Once the subsistence of copyright was established, the infringement finding was fairly straightforward.