UK court discusses copyright protection of fictional characters and defences for parody and pastiche

· copyright,fictional characters,Cofemel,Deckmyn,parody

Can a fictional character be protected as a self standing copyright work? If so, what is the test to be applied?

In a judgment handed down yesterday - Shazam v Only Fools The Dining Experience and Others [2022] EWHC 1379 (IPEC) - the Intellectual Property Enterprise Court (IPEC) answered 'yes' and applied guidance derived from EU law, including the decision of the Court of Justice of the European Union (CJEU) in Cofemel (Katposts here).

Let's see what happened.

Background

Only Fools and Horses (OFAH) is a successful BBC TV series that ran between 1981 and 1991, with also some Christmas specials until 2003. The main character is a market trader, Derek "Del Boy" Trotter.

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Derek "Del Boy" Trotter

In 2019, a musical based on the OFAH characters also opened at the Theatre Royal Haymarket in London.

In 2018, the defendants launched an interactive dining show – the “Only Fools The (Cushty) Dining Experience” (OFDE) – in which actors would play the various OFAH characters in a different context (an interactive pub quiz) from the original OFAH series.

Shazam, the claimant in this case, is a company owned and controlled by the estate of the late author of the OFAH scripts. In 2018, Shazam’s solicitors sent a warning letter to the defendants, claiming that OFDE would infringe the IP rights held by Shazam in OFAH. Proceedings were initially issued in the High Court in 2019 and transferred to the IPEC the following year.

According to Shazam, copyright would subsist in the OFAH scripts, the lyrics and opening theme song of OFAH, and … the OFAH characters.

Insofar as Del Boy is concerned, the following would make his ‘persona’ and would be therefore protectable:

  • His use of sales patter with replicated phrases;
  • His use