You plonker, Rodney – copyright protection for fictional characters is real

22nd June 2022

A recent High Court judgment has held a fictional character to be an independent copyright work for the first time.

The case

This precedent-making decision involved the nationally recognised television show Only Fools and Horses (OFAH), created by John Sullivan.

The claimant, Shazam, is a company which was set up by John Sullivan in 2003 to protect his intellectual property rights in relation to OFAH. In 2019, Shazam also released a musical based on OFAH.

In 2018, the Defendant created an interactive dining show called Only Fools The (cushty) Dining Experience (OFDE). This included performances by actors playing key characters including Del Boy Trotter, Rodney and Uncle Albert. OFDE did not have a licence to use the name of the show or the characters. Proceedings were subsequently issued by the Claimant in the High Court. There were two key issues to consider; copyright infringement and passing off.

Copyright protection for fictional characters

The High Court ruled that the scripts are ‘dramatic works’ and the character Del Boy is a ‘literary work’, both of which infringed the copyright. This was the case as copying another’s work does not have to be direct and as such, indirect copying of both the script and the character had occurred.

The script for OFDE included key character traits such as Del Boy’s use of French in order to sound sophisticated and specific catch phrases used throughout the entirety of the show such as “Lovely Jubbly”. A substantial part of the scripts infringed copyright in addition to the separate protection afforded to Del Boy’s character.

The interesting point is that the judge decided that Del Boy as a character was protected by copyright in its own right for the first time. The character of Del Boy has a distinguishable back story and character traits which were identifiable throughout OFAH. His catchphrases and character relationships were present from the very first episode and formed a part of the story John Sullivan created. Extensive copying of such a character was found to infringe copyright and was not protected by parody or pastiche. The judge further found that there was no fair dealing by OFDE due to the extent to which the material was used with no attempt to rework any of the material.

Passing off

In addition, the judge also found that the OFDE experience constituted passing off. Goodwill had been built up by the Claimant in relation to the show and the individual characters. Both the name of the dining experience and the similarity of the characters were considered likely to constitute a misrepresentation. The judge felt that customers would likely be misled to believe that the show was authorised and associated with OFAH. This meant that customers could be diverted from purchasing tickets from the authorised musical and instead attend the unlicensed dining experience, causing damage to the claimant.

This judgment is important for many businesses and will be a particularly helpful decision for rights holders. Not only will this decision be valuable to the owners of rights relating to other fictional characters, it will have a major impact of those who have used fictional characters without the copyright owner’s permission.

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