Courts in the United Kingdom have finally addressed the question of copyright protection being provided to fictional characters in Shazam Productions Ltd. v. Only Fools the Dining Experience Ltd & Others.
The court held that fictional characters are capable of being protected by copyright, given that the character is identifiable, distinct, and original.
Only Fools and Horses is a British sitcom written by the late John Sullivan. The rights of the Sitcom are owned and controlled by Shazam Productions Ltd. The defendant opened an interactive dining experience based in the show in 2018. The scripts of the dining show had characters, catchphrases, and themes of the original Only Fools sitcom.
Shazam issues the defendants a warning letter claiming they had copyright over the Only Fools scripts, the characters (particularly Del Boy), the lyrics and theme song for the show. Shazam them went on to file a suit against the OFDE and the defendants claimed parody as a defense.
The first question the court had to answer was whether the characters of the show in question would be protected by copyright law. The distinct character of Del Boy with his characteristic catchphrases, use of the French language, positive disposition and the contribution of both the scriptwriter and the actor David Jason to the nuances of the character were all taken into consideration.
The judge, after having watched a few episodes of the sitcom, opined that the character was “precisely and objectively discernible” and it satisfied the two-stage test for copyright protection set out in Cofemel case and was also protected under EU copyright law. The judge also held that the body of scripts would not be given copyright protection, as it was not intended to be performed continuously.
The two stage Cofemel test:
First, … that there exists an original subject matter, in the sense of being the author’s own intellectual creation.
Second, classification as a work is reserved to the elements that are the expression of such creation.
The court rejected the defense of parody made by OFDE, asserting that a mere recreation of a show in a comedic way would not qualify as a parody or pastiche. A parody includes an element of mockery and have a target of artistic confrontation. The court found that there was “overwhelming and obvious” evidence of infringement by the defendants.
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