In a significant judgment this week, the Intellectual Property Enterprise Court ruled that the character of ‘Del Boy’ from the well-known BBC sitcom ‘Only Fools and Horses’ was protected by copyright. This is the first time an English court has made such a ruling in respect of a fictional character. (For viewers in Scotland, the law is the same here.)
A claim for copyright infringement and passing-off was brought by Shazam Productions - a company controlled by relatives of the late John Sullivan who wrote ‘Only Fools and Horses - against various defendants who were promoting “Only Fools The (Cushty) Dining Experience” as an interactive dining event. The marketing of the dining experience expressly stated that they did not use scripts from the TV series and also included a disclaimer on their website terms and conditions stating that it was not affiliated with the television production.
Superficially, this might seem an obvious case of infringement but the legal arguments around the Del Boy character were complex. The claim of copyright in the character was not based on reproduction of specific scripts but rather the features of the character. These included his use of sales patter, mangled French dialogue, eternal optimism and his relationship with his brother, Rodney.
Ultimately, the legal analysis involved 2 steps. The first step was to consider whether Del Boy’s character was original, i.e. was the intellectual creation of John Sullivan. The court held it was, referring to the character’s development, backstory, environment, language ambitions and family and personal relationships which were all combined into a single character.
Secondly, it was necessary to show that the original character had been embodied in a copyright literary work, which the court accepted it had been. This was based on the way the character was documented and the judge appears to have formed this view by watching episodes of the show with the script in hand. Interestingly, the judge specifically commented that it did not derive from David Jason’s very recognisable portrayal of Del Boy on screen.
After that, the court found that the copyright in the character was infringed within a specific script of the ‘Dining Experience’ event.
The judgment narrates in detail the creative process involved in developing Del Boy which fans of the show will find interesting. It was news to me that the phrase ‘Lovely jubbly’ was specifically coined by John Sullivan. ‘Cushty’ was not.
The impact of the case will take time to emerge. Many well-known fictional characters such as Harry Potter and James Bond are already protected by trade marks in many countries and so may be off-limits for ‘experience’ or other related offerings anyway.
One thing to watch will be the question of how fully-drawn and fleshed out a ‘copyright’ character actually needs to be. The judge’s detailed account of how Del Boy was developed, equipped with a backstory and fully-formed as a character from the outset could provide a basis viewing shallower or secondary characters in other productions differently and less worthy of protection. As such, it might be premature to assume all recognisable and identifiable characters in productions are copyright-protected because of this decision.