CWIC 2022 - THE HYPERCONNECTED HUMAN

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COPYRIGHT IN DEL BOY, A RATHER ‘CUSHTY’ DECISION

Member News published by Howes Percival LLP, under Legal / IP

The recent decision in Shazam Productions Ltd -v- Only Fools The Dining Experience Ltd & Ors [2022] EWHC 1379 (IPEC) serves as an excellent reminder of the potential breadth of works protected by copyright, together with how the tests for such protection are applied.

The recent decision in Shazam Productions Ltd -v- Only Fools The Dining Experience Ltd & Ors [2022] EWHC 1379 (IPEC) serves as an excellent reminder of the potential breadth of works protected by copyright, together with how the tests for such protection are applied.

Shazam Productions Ltd (a company set up to commercialise the intellectual property rights in Only Fools and Horses (“OFAH”) held by the writer, John Sullivan) brought a claim against a number of defendants who were involved in an interactive dining experience called the Only Fools The (cushty) Dining Experience.

The (very) short version is that: (1) dramatic copyright was found to subsist in the each individual script for OFAH; (2) literary copyright was held to be in ‘Del Boy’ as a character; (3) there was copying of a substantial part of both the scripts and ‘Del Boy’; and (4) there was no defence of fair dealing in this instance.

The judgement makes for an interesting read, not because it creates any new law per se, but because it serves a stark reminder of the wide potential application of copyright. To my knowledge (supported by the fact neither Counsel cited any determinative precedents), this is the first case under English law that specifically found copyright in a character. It is, of course, very fact dependent. In this case significant weight was applied to the detail and noted characteristics of ‘Del Boy’ being present in the scripts of OFAH, hence why it was found that literary copyright was the appropriate form of copyright.

This interesting and well-considered case is rather juxtaposed against the less well considered claim in the US regarding the two songs titled “All I Want For Christmas Is You”. Put rather bluntly, it has apparently taken around 28 years for the claim to be brought and there is no suggestion that the songs themselves are musically similar. Whilst we are not experts in US law, it seems to be a rather ill-fated claim from the outset.

For further information or if you wish to discuss any copyright related matter please contact Stephen Ruse on 01604 258064 or by email to stephen.ruse@howespercival.com.

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