English High Court finds Only Fools and Horses-themed dining experience in breach of copyright

About this case:

• Citation:
  [2022] EWHC 1379 (IPEC)
• Judgment:
  External link
• Court:
  England and Wales High Court
• Judge:
  Deputy Judge Kimbell

Shazam Productions Ltd raised claims of copyright infringement and passing off against eight defendants connected to a show marketed under the name “Only Fools The (cushty) Dining Experience”. The defendants argued that they had not used any copyrighted material or alternatively that it fell under the category of parody or pastiche. 

The case was heard by Deputy High Court Judge John Kimbell QC, with Jonathan Hill appearing for the claimant and Thomas St Quintin for seven of the eight defendants. 

New context

The third and fourth defendants, Alison Pollard-Mansergh and Peter Mansergh, decided to develop an interactive dining show based around the characters from OFAH in May 2018, following the success of a similar venture based on the sitcom Fawlty Towers. The show, based on a script written in September 2017, used the characterisations and relationships between the characters as it was in Series 6 of OFAH but in the new context of an interactive pub quiz. 

In July 2018, solicitors instructed by the claimant wrote to the defendants to complain that, based on the advance publicity that they had seen, any performance of the dining experience would inevitably involve an infringement of its IP rights. In a reply, Mr Mansergh stated: “Having had long discussions with my legal counsel, I am satisfied that no trademark, copyright or PRS infringements will result due to performances of the tribute/improv show/pub quiz/trivia night.” 

In February 2019, the claimant launched a new musical based on OFAH written by Jim Sullivan, the son of show creator John Sullivan, and comedian Paul Whitehouse. Proceedings in the High Court were later initiated in December 2019 alleging that copyright subsisted in the scripts for the original series as well as its characters. 

Counsel for the claimant submitted that the characters used in the dining experience had their own distinctive traits and mannerisms that made them clearly identifiable to third parties. In the case of the character of Del Boy this included his ambitious nature, use of mangled French, protectiveness of his younger brother, and wardrobe choices. 

Fully formed character

In his decision, Deputy Judge Kimbell noted that there had as yet been no detailed discussion of whether copyright could subsist in a character in English law. On this point, he said: “I have no hesitation in holding that Del Boy as a character is an original creation of John Sullivan which is the expression of his own free and creative choices. I also consider that the character of Del Boy is clearly and precisely identifiable to third parties in the OFAH Scripts.” 

He continued: “Not only are the five features particular relied upon by the Claimants, as being features of Del’s character clearly present in the Scripts but the character appears fully formed in the very first series. Del’s attitudes views and approach to life, work, the law, his family, the future, his past together with his own aspirations and beliefs about himself are all objectively present and clearly identifiable from the Scripts.” 

Addressing whether the defendants had infringed the claimant’s copyright, Deputy Judge Kimbell said: “The commonality between Del Boy of the September Script and the Del Boy in the Scripts is almost total. The copying was far more than the substantial copying required for a finding of infringement. There is no evidence that the actors and Ms Gillham directly used the Scripts themselves to create the Del Boy of the September Script but there is clear evidence that they watched clips from OFAH and watched entire episodes OFAH when developing the earlier iterations of the September Script.” 

He went on to say: “The evidence demonstrates that a conscious decision was taken to copy the names, mannerisms, catchphrases and full back stories of five of the main characters of OFAH who then all appear in one of the familiar settings of OFAH. In these circumstances, it seems to me to be plain and obvious that (a) a substantial part of the Scripts was copied into the September Script and (b) that what was copied represented the expression of the intellectual creation of John Sullivan as the originator of those characters, their catchphrases and back-stories.” 

The judge concluded: “I do not accept that the nature of OFDE was so removed from OFAH as to make it obvious that it was not associated with OFAH. The similarity in the dress and appearance of the characters in the publicity material for OFDE, and the use of the ‘onlyfools’ domain name were in my judgment such that it was likely to cause causal observers to consider that the OFDE show was officially authorised and associated with OFAH.” 

Deputy Judge Kimbell therefore concluded that the claims for copyright infringement and passing off succeeded.