Anita Gogia is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.
On June 8th 2022, Deputy High Court Judge John Kimbell released his separating copyright in literary and dramatic characters. For the , a fictional character (Derek ‘Del Boy’ Trotter and others from Only Fools and Horses (“OFAH”) was recognized as an independent copyrighted work.
Judge Kimbell ruled in favour of Shazam in the case between Shazam Productions Ltd. and Only Fools The Dining Experience Ltd (among other defendants). John Sullivan is the creator and writer of OFAH, a successful and well-loved TV show. The claimant, Shazam, is a company . Sullivan’s family has that it took Sullivan decades of “personal experience, skill and hard graft to create and develop an imaginary world rich in memorable characters” warranting copyright.
Shazam brought action against the defendants to prevent their continued performance of an unlicensed interactive dining show. The where the performers used the “” of various characters from OFAH. The defendants that they were passing off OFAH characters on the basis that their show is seen as an unofficial tribute..
copyright for the scripts for each episode, the body of scripts taken as a whole which collectively create the OFAH world, the characters, the lyrics and opening theme song of OFAH, and particularly the character of Del Boy and all his specific characteristics.
Notably, in his decision, Judge Kimbell that he did not accept that “the nature of OFDE was so removed from OFAH as to make it obvious that it was not associated with OFAH”.
Copyright of scripts
Judge Kimbell concluded that each script was protected as a dramatic work and not a literary work (as copyrighted works cannot be both per UK law). Dramatic work is as a “work of action, with or without words or music, which is capable of being performed before an audience.”. He also where courts held that a screenplay is a dramatic work, making it a “” to conclude that a script is also dramatic work.
Copyright of scripts as a whole
Judge Kimbell also that the scripts taken as a whole are not literary or dramatic work. Unlike literary works, where each of the individual chapters and the final completed body are separate copyrightable works, there is no proof that Sullivan conceived the ending of the OFAH saga or intended the scripts to be regarded as a “unitary whole.” . Moreover, each script was intended to be performed, filmed, and broadcasted individually rather than ever “intended to be performed continuously one after the other”.
Character of Del Boy
Judge Kimbell concluded that the character of Del Boy the originality and identifiability conditions of the test for copyright protection under EU law as the character is original and precisely identifiable to third parties. With this conclusion, Judge Kimbell found that Del Boy is “” under literary work per the UK list of protected works.
Infringement of protected works
Judge Kimbell considered four basic legal principles listed in . He also considered the . He concluded that the The defendants claimed that their script of OFDE was fair dealing for parody or pastiche but Judge Kimbell was not satisfied to accept this defence when considering the Judge Kimbell also considered the meaning of parody per case law. , Interestingly, that it is “unusual for parodies to take comic works as a subject”. Judge Kimbell concluded that the defendants’ use of the claimant’s work does not qualify fair dealing because it .
For the passing off claims, Judge Kimbell considered the claimant’s arguments in proving . Judge Kimbell that significant goodwill was built and attached to OFAH. He further accepted that the name of the interactive show was liable to “”. Particularly, that misrepresentation could have been avoided if the disclaimer in the terms and conditions page was more prominent, and that the disclaimer in fact proved the defendants were “”. Finally, Judge Kimbell accepted that some members of the public would be
This decision provides added judicial guidance in the UK for defences to copyright infringement for purposes of parody and pastiche. Further, the decision clarifies separation of copyright protection for literary and dramatic works. This decision may open the flood gates for more copyright infringement claims for characters used without permission on different forms of media, hence creatives should take precautions when using characters from other works in their media productions.