Only Fools The Dining Experience: Cushty or Hooky Street?
Hooky, according to the Intellectual Property Enterprise Court, which has ruled that Only Fools The Dining Experience infringed copyright in the characters and scripts of the sitcom, Only Fools and Horses.
The Dining Experience offered guests dinner in an immersive, theatrical setting with actors playing the parts of much-loved characters from the sitcom. The actors were briefed, and used scripts, to create “pitch perfect” live versions of the sitcom’s main characters, reflecting their familiar vocabulary. Quite unlike the changing of the seasons and the tides of the sea, it was no mystery where the content came from: Shazam Productions – the company which owns rights in the sitcom – claimed that The Dining Experience was a “poor quality” imitation, “ripped” from the original scripts.
In finding in favour of Shazam, the court found the Del Boy character constituted a literary work, protected by copyright and each script for the individual sitcom shows constituted a dramatic work, protected by copyright.
Fair dealing, for the purposes of parody and pastiche, did not provide any defence to claims of infringement: The Dining Experience’s wholesale use of the characters, their backstories, jokes and catchphrases was closer in form to a reproduction and involved very extensive borrowing (both qualitatively and quantitively) from the scripts of the original sitcom.
Importantly, the decision confirms that a well-defined, distinctive and original character, such as Del Boy – a fully rounded and layered character, to whom a great deal of thought was given in terms of how he would express himself, from his much-repeated phrases such as “cushty”, “lovely jubbly” and “plonker” to his use of mangled French – is capable of benefiting from copyright protection. For writers and producers, this news is Crème de la Menthe.
The decision also provides helpful guidance on when the defences of fair dealing for the purposes of parody and pastiche may be relied upon. Briefly, a parody needs to express an opinion by means of its imitation and a pastiche may imitate the style of a work, without reproducing it, in both cases maintaining a noticeable difference from the original.
The Dining Experience may now have to stick a pony (or few) in Shazam’s pocket.
For more information, do contact: russell.beard@bakerskelly.com
The above is intended as general commentary only and is not intended as a substitute for specific legal advice. It also relates to the law of England and Wales only and no other jurisdictions.
AUTHOR
