Shazam, the company holding the rights in the sitcom Only Fools and Horses previously owned by its creator, John Sullivan, sued Only Fools The Dining Experience (‘OFDE’) and related companies and individuals for using characters, catchphrases, themes and other material taken from the sitcom in their immersive theatrical dining experience “Only Fools The (cushty) Dining Experience”. The copyright works Shazam sought to rely upon included copyright in the characters as works in themselves, as well as copyright in the scripts for the sitcom, taken both individually and as a body. Shazam also sued for passing off. The defendants denied all the claims, maintaining that characters could not be protected by copyright and that they had taken any material that could be protected. They also argued that they had a defence to copyright infringement as their show amounted to a parody or pastiche and what they were doing was fair dealing, a defence not previously considered by any English court.
The Intellectual Property Enterprise Court upheld all of Shazam’s claims, except that based on treating the body of scripts as a discrete copyright work. It held that the character of Del Boy, which was taken as an example, was protected as a copyright work in itself, the first time that any English court has made this important finding. Extensive material taken from Shazam’s copyright works was found to have been taken by the defendants. The court also rejected the parody and pastiche defence, holding that the defendants’ show was neither a parody or pastiche, as those terms are properly understood, but a mere imitation, and that in any event the defendants’ acts did not constitute fair dealing. On passing off, the court held that the title of the defendants’ show was liable to deceive and to divert custom to the defendants’ show from the West End musical recently launched by Shazam.
Jonathan Hill, instructed by Ashfords LLP, represented Shazam.