Judge oversees Only Fools and Horses copyright fight

A company set up by the creator of the television sitcom Only Fools and Horses is embroiled in a High Court copyright fight with the operators of an “interactive theatrical dining experience”.

Shazam Productions, which was set up by writer John Sullivan, who died in 2011, has taken legal action against Only Fools the Dining Experience.

Lawyers representing Shazam allege the “Only Fools The (cushty) Dining Experience” show infringes copyright in the sitcom scripts and copyright in “each of the central characters” – and that marketing of the show has involved “passing off”.

They say the case could have ramifications for Shazam.

Lawyers representing the dining experience dispute Shazam’s claims and are fighting the case.

Judge John Kimbell is considering arguments at a High Court hearing in London due to end later this week.

“The sitcom constitutes one of the most valuable properties in British television,” barrister Jonathan Hill, who is leading Shazam’s legal team, told the judge in a written argument.

“The outcome of this claim could have potentially very serious ramifications for (Shazam’s) exploitation of its intellectual property in relation to the sitcom.”

Mr Hill said the dining experience show was a “part-scripted, part-improvised” dramatic performance and featured central characters from the sitcom – “Del Boy, Rodney, Uncle Albert, Marlene, Cassandra, Boycie, Trigger and DCI Roy Slater”.

He said the characters had the “distinctive character traits conceived by John Sullivan” and used their “signature phrases and ways of speaking”.

Mr Hill said the operators of the dining experience show contended that their use of the characters and materials from the sitcom did not amount to material that could be protected by copyright.

Considerable intellectual creativity on the part of John Sullivan was expended in developing the character (Del Boy), both at the outset and over the course of writing the body of scripts for Only Fools and Horses

Jonathan Hill

They denied “passing off” on the “footing” that their show would not be seen as “connected” with the owners of the intellectual property in the sitcom, but as an “unofficial” tribute show, he said.

Mr Hill suggested that Mr Sullivan had a “certain kind of genius” and told the judge that he would have to consider whether sitcom scripts were “literary” and  “dramatic” works, and whether the character Del Boy was a “literary” and “dramatic” work.

He said Del Boy was “far from being a stock character” but had many “highly distinctive traits, mannerisms and catchphrases”.

Mr Hill told the judge that Del Boy was the “sine qua non” – or epitome – of a character that should be the subject of protection by copyright.

He added: “Considerable intellectual creativity on the part of John Sullivan was expended in developing the character, both at the outset and over the course of writing the body of scripts for Only Fools and Horses.”

Barrister Thomas St Quintin, who is leading the dining experience’s legal team, said the issues to be resolved were: whether the dining experience show infringed “any copyright” as asserted; whether, if there was infringement, the dining experience could rely on a defence of “parody or pastiche”; whether there had been passing off; and whether Shazam, rather than the BBC, owned “goodwill” attached to the name “Only Fools and Horses”.

“The marketing and presentation of (the show) is sufficiently different that the relevant public are well aware that it is not associated in the course of business with the sitcom,” he told the judge in a written argument.

“There is no evidence of anyone believing that (the show) is associated in the course of business with the sitcom.”

The judge is on Wednesday due to hear evidence from John Sullivan’s son, Jim Sullivan, a director of Shazam and Alison Pollard-Mansergh, who owned the dining experience.

Carl Steele, a solicitor at law firm Ashfords, which represents Shazam, said outside court that the judge’s ruling could clarify copyright law.