The law finally catches up with Del Boy

Only Fools and Horses… is a successful British TV sitcom. Its main character Derek “Del Boy” Trotter is a market trader, often trying to avoid law enforcement. The court recently ruled that Del Boy is protected as a fictional character.

The show ran from 1981 to 1991 with Christmas specials until 2003. In 2019 a musical based on the characters started its run at the Theatre Royal Haymarket in London. Its title derives from the old saying “only fools and horses work for a living”. 

In 2018 the defendants in the case started an interactive dining show the Only Fools The (Cushty) Dining Experience. This features actors who play the various characters in a different context from the original series.

The estate of the late author of the show brought a claim that the dining experience infringed its rights. The court agreed and, in particular, ruled that Del Boy is protected by copyright and that the defendants had infringed this. The court rejected the defendant’s defence of parody or pastiche. It explained mere imitation (of a work of comedy) is not enough to constitute parody.

So, Del Boy lives on as a fictional character and the rights owners can prevent third parties from imitating him. This is consistent with decisions in other countries. For example, the decision in Germany protecting the Pippi Langstrumpf (longstocking) case. Also the decision in the USA about Sherlock Holmes. The court also ruled the defendant had misrepresented and passed off a connection with the original show.

This is good news for those who create characters. But the decision is interesting for another reason too. The issue is that UK copyright legislation is not as flexible as its overseas counterparts. UK legislation has a prescriptive list of protectable works; a work cannot simultaneously be literary and dramatic. It seems the defendant had infringed the copyright in the literary work of the scripts so the result would have been the same. But for the court to interpret the character of Del Boy as a literary work seems like a stretch. We look forward to further developments.

What should you do

If you plan to use a character created by someone else you should get a licence or ensure you change it sufficiently to become a parody or pastiche. Even then, you can probably expect the owner of the rights to take an interest.

If you need advice, contact me f.jennings@teacherstern.com or +44 (0) 20 7611 2338.

This article first appeared on the Teacher Stern website.

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