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In a recent decision of the Intellectual Property Enterprise Court in the UK, it was found that the well-known fictional character of Del Boy Trotter from ‘Only Fools and Horses’ is protected by copyright. This decision now allows the owners of that copyright to prevent others from making use of the character. Significantly, this is the first time a fictional character has been protected through copyright and will have a significant impact on the protection of literary characters and works going forward.

The defendants in this case ran an interactive dining show called the “Only Fools The (Cushty) Dining Experience”. Throughout the meal, the actors would play different characters from the ‘Only Fools and Horses’ television series. While the dining experience did not use scripts from the TV series, the actor playing Del Boy did portray some very iconic features of his character.

The argument

The Claimant in this case, Shazam, was a company owned and controlled by the estate of the late author of the ‘Only Fools and Horses’ scripts. Shazam claimed that the copyright in the character of Del Boy had been infringed by the portrayal of several identifiable features of Del Boy’s character, It was contended that these characteristics collectively made up his persona and would therefore be deemed protectable. These included his use of sales patter, his poor use of French and his eternal optimism, amongst others.

Factor considered

The court firstly had to consider whether Del Boy’s character was original and secondly the court had to decide whether he could be protected as a literary or dramatic work. In applying this two-stage test, the court found that Del Boy’s character was original and did constitute a work as the relevant features of the character were “precisely and objectively discernible in the scripts”. EU law was applied because the facts giving rise to the case arose in advance of Brexit.

Infringement?

The next matter for the court to consider was whether or not infringement had taken place. The defendants sought to rely on the defence of parody or pastiche in accordance with Section 30A of the Copyright, Designs and Patents Act 1988. In Ireland, this defence falls under Section 52(5) of the Copyright and Related Rights Act 2000, as amended. Both sections state that fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work. Following a detailed consideration of the matter, the court held that “mere imitation is not enough to constitute parody”. The defence of pastiche was also rejected.

Conclusion

This case is an interesting one as it is the first time an English court has provided for protection of a fictional character. As the decision applied EU law, it will no doubt be of relevance to Irish courts in considering similar cases in the future. The decision is a welcome development for Ireland’s literary industry and its stakeholders who may now have another way of protecting the copyright in their characters specifically. These characters will need to be well developed and there may be arguments against protection for those characters who do not have traits as distinctive as Del Boy Trotter.

For more information, contact a member of our Intellectual Property Team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.



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