Our IP disputes team was declared the winner of an “Impact Case of the Year” award at the Managing IP Awards 2023.
The team received the award for successfully representing Shazam, the owner of the copyright in the scripts for the award winning television sitcom “Only Fools and Horses”, in a case against an unlicensed interactive dining show.
Below, we delve into the landmark case, focusing on the challenges faced and how the historic outcome was achieved.
Legal proceedings were brought to prevent the continued performance of an unlicensed interactive dining show, called “Only Fools The (cushty) Dining Experience”, which featured characters taken from the famous “Only Fools & Horses” (“OFAH”) sitcom and their catchphrases, jokes, wants, desires and backstories, but presented in the context of an interactive pub quiz which never appeared in the sitcom.
Our team asserted that copyright vests in and protects fictional characters separate from the scripts in which they feature. No previous case in this country had held this to be the case. If copyright did vest, then an unlicensed third party could not write a new episode of OFAH or create an interactive experience involving fictional characters taken from OFAH.
The team looked to overcome the challenge by leading evidence to show that “Del Boy” was identifiable and recognised as a well-known fictional character, whom the public could identify from the scripts written for OFAH, separate from the performance of the actor (David Jason) who played him in the TM sitcom.
Deputy High Court Judge John Kimbell QC held that Del Boy is a separate copyright work from the scripts in which he features. This was the first time that the Courts in this country have recognised that a fictional character can be an independent copyright work.
The Deputy High Court Judge also held, amongst other things, that the Defendant’s show infringed Shazam’s copyrights and its marketing and name was contrary to the law of passing-off. He also held that the show was not ‘fair dealing’ with Shazam’s copyrights, for the purposes of parody or pastiche. Those working in the creative industries now have judicial guidance available in the judgment as to the ingredients for the previously untested defences of parody and pastiche.
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