Don’t be an IP Fool: Is Del Boy protected as a character under UK copyright?

Can a well-known character, such as Del Boy, be protected by copyright in the UK? Can copyright subsist in the world of Only Fools and Horses rather than only in individual scripts? This was considered by the Intellectual Property Enterprise Court (IPEC).

Shazam Productions Ltd (a company related to the family of the Only Fools and Horses scriptwriter) brought a claim against the creators of an interactive dining experience called “Only Fools The (cushty) Dining Experience”.

The interactive dining experience transposed popular characters of Only Fools and Horses (e.g. Del Boy) into a pub quiz setting. Shazam Productions had launched a musical based on the Only Fools and Horses characters and may have been concerned that the dining experience would compete with its musical or impact its rights to the Only Fools and Horses characters.

The case is notable for its finding that the Del Boy character (as described within the Only Fools and Horses scripts) was protected by copyright as a literary work (and had been infringed by the creators of the dining experience). It was key that Del Boy was:

• an original creation of the Only Fools and Horses scriptwriter that was the author’s own intellectual creation and reflected the author’s personality and expressed the author’s free and creative choices.
• a fully formed character with complex motivations, distinctive characteristics, a full backstory, and multi-faceted layers of personality; and
• clearly and precisely identified in the Only Fools and Horses scripts.

Although copyright subsisted in each individual script of Only Fools and Horses, there could not be copyright (as a literary or a dramatic work) in the imaginary world of Only Fools and Horses (as described within the Only Fools and Horses body of scripts as a whole). The reasoning for this was that the body of scripts were never intended by the creators to be read or performed as one entire work. Each script narrated an individual, standalone episode.

Take Home Points

• This is the first time that an English Court has found a fictional character capable of being protected as an independent copyright work. Previously, copyright protection in characters had been very difficult to claim, and centred on the protection of the characters’ images and not their personality traits, mannerisms, appearance, or quirks. The judgment follows rulings in other jurisdictions such as for Pippi Longstocking (in Germany) and Sherlock Holmes (in the USA).
• It may be easier in the future to prevent the copying or unlicensed use of well-known characters if such characters are original and distinctive and have been described by the creator with sufficient precision and specificity.
• Passing off may also be relevant as a ground of infringement where characters are copied. In this case, Shazam Productions was also successful in bringing passing off claims due to the goodwill it had in the name of “Only Fools and Horses” and the characters (including Del Boy).
• The judgment contains a useful summary of the “parody” and “pastiche” defences to copyright infringement. In both cases, there must be a new work created that is distinct from the original:
  • A parody must “(a) evoke an existing work; (b) be noticeably different from that existing work; (c) constitute an expression of humour or mockery”. Parody requires some form of critique and engagement with the original work (rather than simply copying).
  • A pastiche requires that “the use imitated the style of another work, or it was an assemblage or medley of a number of pre-existing works”.

For a defendant to avoid infringement and rely on these defences, any copying or use made of an original work must be “fair” (e.g. “too much” of the original work should not be taken and the new use generally should not divert trade).

• Lastly, the case serves as a useful reminder that the IPEC will often require a claimant to narrow or limit their infringement claims. This will require careful thought as to how to present the best possible case.