Fans of “Only Fools and Horses” and advisers on the law of copyright will both be interested in a case reported this month.
The facts concerned a novelty dining experience, “Only Fools the (cushty) Dining Experience “, where actors playing the parts of characters in the TV show interacted with diners as they ate through a mock pub quiz.
The legal issue in dispute was whether, separate to copyright in the scripts, recordings and music of the shows, there was also copyright in the characters of the show, notably Del Boy. There have been surprising few English law cases on such a question and so the judge looked to an EU case and applied a two stage test. Firstly, was the character original and secondly, was he identifiable with sufficient precision and objectivity?
The judge found Del Boy to be an original creation because he was a “fully rounded character” not a “stock character”. Noting his use of favoured phrases such as “lovely jubbly”, his use (or misuse) of the French language, his relationship with and sacrifices for his brother, Rodney, and his propensity for involvement in dodgy dealings and schemes, the Judge found that the combination of these elements made his character distinctive.
He concluded on the second point that the elements of Del Boy which made up his character were “precisely and objectively discernible” in the dialogue and character descriptions of the writer of the show; John Sullivan. Consequently the character of Del Boy was protected under the law of copyright as a literary work.
Two defences raised for the defendants were both unsuccessful.
The representations of the characters did not qualify as a parody as parody requires an element of mockery of the original, where here the intention was to imitate. Borrowing humorous elements from the original comedy did not amount to mockery.
For the defence of pastiche to succeed, the mimicry of an original must result in something noticeably different while here the intention was to recreate the characters. Relevant to both defences, a further requirement that there must be “fair dealing” by the defendants was also not met.
The law may be complex but the lesson is simple. Don’t be a plonker, Rodney! If you are unsure about intellectual property rights, take advice!
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