Only Fools and Horses – copyright in characters

Only Fools and Horses is a successful BBC TV sitcom that ran between 1981 and 1991.  The show is set in working-class Peckham, South East London, and follows the ups and downs of the Trotter family. The main character is a market trader, Derek "Del Boy" Trotter, who would drive around in a three-wheel car together with his younger brother Rodney Trotter attempting to get rich.

In this case, Shazam v Only Fools The Dining Experience and Others, the Intellectual Property Enterprise Court was asked to consider, amongst other things, if a fictional character can be protected as a self-standing copyright work. In a landmark decision, the court held that the character would be protected by copyright in its own right, which was infringed by the Defendants.   

"Lovely, jubbly, innit" in the words of Del Boy!

What happened?

In 2018, the Defendants launched their interactive dining show – the “Only Fools The (Cushty) Dining Experience”. Actors would play the various characters in Only Fools and Horses, but in different settings and contexts from the original Only Fools and Horses series. However, the Defendants were found to have reviewed the series before creating their show.

Shazam, the Claimant in this case, is a company owned and controlled by the estate of the late author of the Only Fools and Horses scripts. The Claimant argued that copyright subsists in and to the Only Fools and Horses scripts, the lyrics and opening theme song of Only Fools and Horses, and the Only Fools and Horses characters.

Interestingly, it was argued that Del Boy had the following characteristics in his ‘persona’ and that these traits identified in the scripts gave his character sufficient precision to be protectable as a separate copyright work:

• His use of sales patter with replicated phrases.
• His use of French to try to convey an air of sophistication.
• His eternal optimism.
• His involvement in dodgy schemes.
• His making sacrifices for another character.

The Claimant claimed that its copyright was infringed and the Defendants' acts amounted to passing off.

There were nine issues to be considered at trial, but the most significant one was whether or not the body of scripts for Only Fools and Horses and/or the character Del Boy were considered literary works and/or dramatic works and, if so, if the works were infringed. The Defendants denied infringement and sought to rely on the defences of parody and pastiche, which were only formally introduced into English law recently.   

A parody is an imitation of a work which exaggerates the characteristics of a work or style for comic effect and expresses an opinion on something. Whereas, a pastiche, is a medley of various things and often consists of imitating the style of a work or an author without necessarily taking any elements of that work.  

The findings

The Judge found that:

1. Copyright could subsist as a separate literary work in a fictional character, such as in Del Boy, because the scripts gave an accurate description of his character (in fact the judge watched three episodes and commented it was striking how much of Del Boy is in the script) and that he represents a highly distinctive and original character. He drew comfort from the fact that both US and German law ''permits copyright to subsist in characters if they are sufficiently complex and distinctive...".

2. Copyright would subsist in the scripts separately as dramatic works.

3. The evidence of infringement by the Defendants was "overwhelming and obvious" and was far more than a substantial part of the literary and dramatic works (which is the minimum which needs to be shown to succeed in copyright infringement).  In terms of the character, the commonality was almost total and there were numerous examples of original features being taken from the script.

4. The defences did not apply for parody and pastiche because.

• With respect to the parody defence, the use of the Del Boy character in the dining experience was not for the purpose of parody which requires the new work to express some kind of opinion by means of its imitation and be different from the work parodied. It might be something outside the work such as a political figure or policy of a public authority or an opinion about the work itself.  So, in this case, the mere imitation of Only Fools and Horses is not enough to constitute a parody.
• With respect to the pastiche defence, the Judge found that a pastiche has two essential elements: (i) the use imitates the style of another work; or (ii) it is an assemblage (medley) of a number of pre-existing works. In both cases, as with parody, the new work must be noticeably different from the original work. So, in this case, the defence failed because the use of the Del Boy character involved a "wholesale borrowing of content" and the dining experience was too much like an adaptation rather than a new work in and of itself.

5. There was no fair dealing in the work because the taking from the scripts was extensive in terms of quantity of material and its quality, there was no type of expression in the work or otherwise. The aim of putting on the show by the Defendants was to entertain the public based on the characters from Only Fools and Horses and so the new work competed with original work.

6. The Defendants had passed off their show as originating from the Claimant.  In particular, the public would view the Defendants' show as a spin out from the original show. The judge thought this was a particular risk because the name of the Defendants' show was "Only Fools The (cushty) Dining Experience" and there was evidence that the original show was referred to as "Only Fools".  In addition, the judge commented that the Defendants were obviously aware of the risk of confusion, which is why they added the disclaimer to their website to say that it was not associated with the original show.

In conclusion, the judge found copyright infringement in the scripts and the character of Del Boy and passing off.

John Shaw, Associate in the Intellectual Property team, said: "This is a significant judgment, as it is the first time an English court has found that a fictional character, as set out in a script, is capable of being subject to copyright protection by itself.  Of particular importance in this case was the fact that the script was very descriptive of the character and the character in the drama accurately followed the script and was not deviated from by the actor".