Dining Show Infringes Only Fools and Horses Copyright: The Intellectual Property Enterprise Court makes new law

Summary
The Intellectual Property Enterprise Court held that creators of an interactive dining quiz show (the “Quiz Show”), based on the much-loved Only Fools and Horses TV programme, had infringed copyright. Additionally, the claimant’s claim for passing off also succeeded.

Background

• The late John Sullivan OBE was the writer of all of the Only Fools and Horses TV scripts. The intellectual property rights in Only Fools and Horses are held by John Sullivan’s estate, the claimant in this case, Shazam Productions Limited (“Shazam”).
• The defendants are the developers of the Quiz Show which used the characters from Only Fools and Horses. The actors in the Quiz Show used the appearance, mannerisms, voices and catch-phrases of beloved characters Del Boy, Rodney and several others, within the new context of an interactive quiz. The audience were served a three-course meal during the Quiz Show.
• Amongst other arguments, the claimant succeeded in demonstrating that:
  • copyright subsists in the character of Del Boy as he appears in the scripts, as a literary work. This is new law;
  • copyright subsists in each script as a dramatic work; and
  • the Del Boy character and the scripts had been copied, in both cases substantially. The evidence was clear that a conscious decision had been taken to copy the names, mannerisms, catchphrases and back stories.
• The Judge rejected the defendants’ argument that the acts of infringement were fair dealing for the purposes of parody or pastiche.
• In relation to parody, the Judge took the view that the use of the characters, backstories, and catchphrases etc did not evoke Only Fools and Horses in order to express humour – the humour was already contained in the copied material –  or to mock it or engage with it in a critical way. The Judge held that the defendants’ Quiz Show script involved the “wholesale transposition of the characters, language, jokes and backstories” into an imaginary pub quiz. The Judge noted that this transposition was closer to reproduction by adaptation than parody. Notably, the Quiz Show website even stated “it’s a hoot… like being in the telly” with audience members offering feedback that it felt like being in a live episode of Only Fools and Horses.
• There was no pastiche either as the elements from the scripts had not been used to imitate the style of Only Fools and Horses: rather, they had been re-presented in a live dining format.
• Because the Quiz Show competed with Shazam’s normal exploitation of their rights, and given the extent of the copying, this could not amount to fair dealing.
• The passing off claim also succeeded. The Judge held that Shazam owned the goodwill in relation to the name Only Fools and Horses and leading characters, in particular Del Boy. The Quiz Show was not so far removed from Only Fools and Horses as to make it obvious that the two were not connected. The similar names and the similarity in dress and appearance of the characters contributed to a misrepresentation that the Quiz Show was officially authorised and associated with Only Fools and Horses.

Comment

•  This Judgment will be welcomed by creators of works which revolve around defined and distinctive characters and the world which surrounds them, as it makes clear that copyright law can extend to protect them, whether they appear in TV scripts, books, films or other media. The Judgment also opens the door to copyright protection for other original creations, such as formats.
• The scope of the parody and pastiche exceptions has been clarified. In particular, parody will be unlikely to succeed as a defence if the only connection to parody is that the original material is funny or entertaining.
• A show as popular and influential as Only Fools and Horses is very likely to have significant goodwill attached to it and the characters that inhabit it.  There will be a real risk of passing off if key features and characters are reproduced.
• In short, cutting-and-pasting characters and the entire premise of a work, into another format may constitute copyright infringement. If it is executed in a manner which leaves the viewer unsure if it is endorsed by the original creators, then there may be passing off too. Clearly, however, these kinds of cases turn on their facts.