Only Fools and Horses – Copyright in Characters
Can a well-known character, such as Del Boy, be protected by copyright in the UK?
The Intellectual Property Enterprise Court recently held that an interactive ‘Only Fools The (cushty) Dining Experience’ (OFDE) infringed the copyright in the ‘Del Boy’ character and committed passing off in relation to the BBC comedy show Only Fools and Horses (OFAH).
Comment
The most interesting aspect of this judgment is that Del Boy, a fictional character, is capable of being protected by copyright as a literary work. This now sets a precedent for future television shows and perhaps other forms of media to argue that their fictional characters are protected by copyright. The main hurdle will be proving that the character is an original creation, especially if the threshold requires a combination of factors the judge pointed to for Del Boy.
Another important point is that the courts are now using the two-stage test in Cofemel to expand the list of works capable of being protected by copyright. This shows that UK copyright law is developing to include a wider range of works within the closed list provided under the existing legislation.
The Del Boy case emphasises the importance of seeking a licence from the copyright owner of a work before doing any of the acts restricted by copyright. If OFDE sought a licence from OFAH to use the characters, they could have avoided a lengthy litigation battle and looking like fools.
Please note the contents of this blog is given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.
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