Copyright subsists in Del Boy 4 min read
The Intellectual Property Enterprise Court in the UK recently determined that various entities infringed the copyright that subsisted in the character known as 'Del Boy' from the television show Only Fools and Horses. It is the first time a UK court has held that copyright subsists in a television character.
Key takeaways
- Copyright can subsist in a television character as described and presented by a body of scripts, at least according to a UK court.
- The position in Australia is uncertain because its courts have not previously considered whether copyright can subsist in a character.
- Previously, Australian courts have protected the name, image and likeness of famous characters through the Australian Consumer Law and the tort of passing off.
Who in your organisation needs to know about this?
People involved in the development and production of films, television shows, performances, novels or other works that are likely to contain characters.
The case
Shazam Productions Ltd v Only Fools the Dining Experience Ltd and Others [2022] EWHC 1379 concerned two shows.
The Original Show
Only Fools and Horses was an acclaimed television comedy that the BBC broadcast in 64 episodes over seven series (1981–1991), with a number of Christmas specials, until 2003.
It principally followed the life of the Trotter family, including Derek Trotter (aka Del Boy), Rodney Trotter and Uncle Albert, as they navigated working-class life in the pubs, clubs and tower blocks of London.
The New Show
From 2018, Only Fools the Dining Experience Ltd and others (collectively, the defendants) developed an interactive dining show that they produced and marketed under the name Only Fools The (cushty) Dining Experience.
The defendants scripted and developed the New Show so as to make the audience feel that they were in the presence of characters from the Original Show.
For example, the actors in the New Show used the appearance, mannerisms, voices and catchphrases of various characters from the Original Show, albeit that the characters were in a new context of an interactive pub quiz and as part of a performance of a new script.
The allegations
In 2019, Shazam Productions Ltd brought an action against the defendants, with allegations of passing off and copyright infringement.
More specifically, Shazam alleged that the defendants infringed the copyright in each of the following:
- each script for episodes of the Original Show;
- the body of scripts for the Original Show; and
- the Del Boy character as described and represented by the body of scripts for the Original Show.
Outcome
The UK court found that copyright subsisted in each script as a dramatic work and the character of Del Boy as a literary work. The court also found that the defendants infringed the copyright in each work and engaged in the tort of passing off. However, it rejected the submission that the body of scripts comprised a literary or dramatic work.
Copyright in Del Boy
This Insight focuses on the decision insofar as it concerns the character Del Boy.
The court considered that copyright subsisted in the character as a literary work (as described and represented by the scripts for the original show).
It reasoned that the character, as emanating from the body of scripts, was sufficiently original and had discernible features that were clearly identifiable to third parties.
In particular, the court considered that the scripts described Del Boy's discernible:
- appearance (eg 'Del in his usual flashy gear');
- relationship with others (eg episode one entitled 'Big Brother');
- character traits (eg 'Del (studying his reflection in the mirror): S'il vous plait…', in reference to Del Boy using French in an unsuccessful attempt to convey to others an air of sophistication); and
- other qualities, including his attitudes and approach to life, work, the law, family and so on.
Once the court satisfied itself that copyright subsisted in the character, the evidence of infringement by the defendants was 'overwhelming and obvious' because the Del Boy character had a commonality that was 'almost total' across the shows.
Ramifications
Previously, Australian courts have protected the name, image and likeness of famous characters through the Australian Consumer Law and the tort of passing off (eg the Crocodile Dundee case). However, they have not previously considered whether copyright can subsist in a character.
As the UK court noted, it seems fair that copyright would protect a literary work that was capable of depicting in the mind of its reader a 'picture' of a character in the same way that copyright can protect a figure as depicted in an artistic work.
However, it is peculiar that the court found that the copyright subsisted in the character. It emanated from a series of scripts for the Original Show in circumstances where the same court considered that copyright did not exist in the collective body of scripts for the Original Show (whether as a literary or dramatic work) because there was no evidence, according to the UK court, that the author of the scripts intended them to be regarded as a unitary whole.
It is unclear whether Australian courts would take the same leap that the UK court has taken.
Actions you can take now
Entities should not copy the discernible features (or substantial parts) of a character without permission to do so from the (possible) copyright owner.