COPYRIGHT AND FICTIONAL CHARACTERS: Shazam Productions Limited v. Only Fools the Dining Experience Limited'.
| Author | Gould, Emily |
A recent decision of the High Court broke new ground in UK law by recognising a fictional character as an independent copyright work for the first time. The case of Shazam Productions Limited v. Only Fools the Dining Experience Limited and Others concerned a character Derek Trotter, 'Del Boy', well-known to UK audiences as the lead role in the cast of the popular television sitcom series Only Fools and Horses (OFAH). The TV show ran for several series and was hugely popular, spawning a number of catchphrases which became inextricably associated with the lead characters. The show last aired in 2003, but some nine years later, at the opening of the London Olympics in 2012, the characters of Del Boy and his brother Rodney made an appearance, reprising a scene from the show, which the judge in the case said was "an indication of its impact and national resonance with the public". (2)
THE CLAIM
The claimant company, Shazam Productions, was formed in 2003 to exploit the intellectual property rights held by the writer of the scripts for OFAH, John Sullivan, who died in 2011.
The defendants had created an interactive 'dining experience' show (the 'OFDE') which featured the Del Boy character (together with others from the series), replicating his appearance, mannerisms, catchphrases and cockney patter, much loved by generations of Only Fools viewers. However, the dining experience show did not directly use any of the scripts from the original show: the actors were encouraged to improvise and interact with members of the audience, whilst remaining 'in character' throughout. In his judgment, John Kimbell Q.C., sitting as a Deputy High Court Judge, found that the aim of the dining experience was "to make the audience feel that they are in the presence of the characters they knew and loved from the ... show". The defendants' own marketing stated:
Only Fools The (cushty) Dining Experience is an immersive theatre show created in loving tribute to the BBC's Only Fools & Horses TV Series. The ITI show does not use script or music from the TV series. (3) The claimant alleged that copyright subsisted not only in the individual scripts to OFAH, but also in the body of those scripts, which collectively established the characters and the 'world' of OFAH, and that, by extension, copyright subsisted in the characters themselves, namely Del Boy, Rodney, Marlene, Cassandra, Uncle Albert, Boycie, Trigger and DCI Slater.
The defendants acknowledged that the scripts of OFAFI were protected by copyright, either as literary works or dramatic works. The distinction between literary and dramatic works has arisen in a number of cases, (4) and, following those precedents, the judge held that each OFAFI script was a dramatic, rather than a literary, work under the Copyright Designs and Patents Act 1988. (5) The claim in respect of the body of scripts was denied because the judge considered that the scripts were never intended to be performed as a work in its own right. There was no evidence to suggest that the author had intended the scripts to be regarded as a unitary whole, nor that he had conceived how the OFAH saga would end. As such, the body of scripts, or the 'world' of OFAH did not constitute a work in itself (either a dramatic or literary work) for the purposes of copyright law. (6)
SCOPE OF COPYRIGHT PROTECTION
Although the scripts for each show were clearly protected by copyright under...
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