Shazam Production Ltd v Only Fools The Dining Experience Ltd & Ors.

A television script intended primarily for performance is a dramatic work. A fictional character may separately qualify for copyright protection where it is an original intellectual creation and its features are expressed with sufficient precision and objectivity. Copyright infringement depends on actual copying of all or a substantial part, assessed qualitatively by reference to the intellectual creation expressed in the work.

The parody exception requires more than imitation of a humorous work: the use must evoke the original, be noticeably different, and express humour or mockery directed at some target. Pastiche concerns imitation of style or the assemblage of pre-existing works, and must remain noticeably different. Section 30A is not a general fair-use provision. Extensive commercial reproduction competing with normal exploitation is unlikely to amount to fair dealing.

The claimant, owner and commercial exploiter of intellectual property associated with the television comedy Only Fools and Horses, sued the defendants over an interactive dining show using its characters, backstories, catchphrases and jokes. The pleaded works included individual scripts, the body of scripts, several characters and other material.

The trial concerned whether individual scripts and the character of Del Boy were copyright works; whether specified features had been copied substantially; whether section 30A of the Copyright, Designs and Patents Act 1988 provided a parody, pastiche or fair-dealing defence; and whether the defendants had passed off the show as authorised. The central issues were the legal status of a fictional character, the scope of the section 30A exceptions, and the application of copyright and passing-off principles to an unofficial live adaptation.

1. Nature of the works. Each script was a dramatic work under sections 1(1)(a) and 3(1) of the Copyright, Designs and Patents Act 1988, because its primary purpose was performance. The scripts taken as a body were neither a separate dramatic work nor a separate literary work.
2. Del Boy. Applying the two-stage approach supported by Cofemel, the character was an original subject matter reflecting John Sullivan’s free and creative choices, and was expressed in the scripts with sufficient precision and objectivity. The combination of distinctive traits, appearance, language, relationships, motivations and backstory was protectable as a literary work.
3. Infringement. The defendants had indirectly copied Del Boy and other characters through the broadcast episodes and their own familiarity with the scripts. They had copied substantial parts of the scripts, assessed qualitatively by reference to the importance and intellectual creation embodied in the copied features. The copying included distinctive jokes, catchphrases, character traits, relationships and backstories.
4. Section 30A. The use was not for parody. It reproduced the characters and material in a new dining setting without critically engaging with or targeting the original or anything else. Nor was it pastiche: it did not imitate the style of the original or assemble a medley of pre-existing works, but reproduced content and adapted it for live dining. The court’s focus was the use made of the protected works, not whether the entire show was itself a parody or pastiche.
5. Even assuming the statutory purpose requirement was satisfied, the dealing was not fair. The taking was extensive in quality and quantity, the show did not engage protected freedom of expression interests, and it competed with the claimant’s normal commercial exploitation, including live adaptations. It therefore failed the second and third steps of the three-step test.
6. Passing off. The claimant had goodwill in the name “Only Fools and Horses” and in the leading characters, particularly Del Boy. The show’s name, presentation and use of the characters were likely to mislead a substantial number of the public into believing that it was authorised. There was a real likelihood of diversion from the authorised musical.
7. The claimant’s claims for copyright infringement and passing off succeeded.

First-instance decision. No appellate history was stated in the judgment.