Rights of literary work: copyright law

Our expert, Stuart Price, discusses a recent case in intellectual property involving the BBC comedy, ‘Only Fools and Horses’.

In the case, the Intellectual Property Enterprise Court upheld claims brought by the family of John Sullivan, the writer of the hit BBC situation comedy ‘Only Fools and Horses’, against a company that had developed and was promoting an interactive dining show called ‘Only Fools The (Cushty) Dining experience’”, which uses some of the well-known characters from the television comedy, including that of the indefatigable Del Boy.

The case is particularly interesting because the Court’s decision was that the ‘Del Boy’ character was actually capable of protection as a literary work, representing the very first time, in the English Court’s at least, that a court has reached a decision on this point.

What’s the impact?

In the past, cases surrounding characters from books and films centred around the image of the character, such as a photograph or drawing. Copyright law would protect such a photograph or drawing as an artistic work, meaning the image could not be used without the permission of the person who created it, unless the use was exempt, such as fair dealing, for example.

This is a landmark case because the Court found that the character of Del Boy is capable of being protected as a literary work.

This now means other writers could also be prevented from using this character in their own work, in a similar way as when characters such as Sherlock Holmes have been used ubiquitously by a myriad of writers.

Characters and catchphrases

The defendants in the case relied upon the defence that their use of the characters names from the television programme was exempt because this amounted to ‘fair dealing’ as in effect, it was a parody of the original show. If this exemption had applied, then there would have been no infringement arising from the use of the names.

However, the Judge found that the use made of the characters and their catchphrases by the defendants did not mock or critically engage with the original television series, and therefore could not amount to a parody. As a result, the court found there had been an infringement of Mr Sullivan’s rights in his literary work.

It remains to be seen if the defendants will launch a subsequent appeal, particularly given the novel nature of the decision.

More information

Stuart Price is a partner in Lodders’ Corporate and Commercial team.  He is an expert in commercial law and regularly advises clients on technology and media contracts, intellectual property matters, company secretarial and data protection issues.