It’s just the sort of ersatz product that would have made Del Boy proud – but the makers of Only Fools and Horses are suing an unauthorised immersive theatre show based on the BBC sitcom for copyright infringement.
The case, which could redraw the limits of British law, pits a television production company founded by the sitcom’s late writer John Sullivan against the creators of Only Fools: The (Cushty) Dining Experience.
At these events, first run in 2018, paying customers enjoy drinks and a three-course meal while interacting with actors playing characters such as Del Boy, Rodney, Uncle Albert, Marlene, Cassandra, Boycie, Trigger and DCI Roy Slater.
The case being heard over three days at the high court this week hinges on who owns the copyright to the characters from a fictional work, and whether it is possible to in effect produce new Only Fools And Horses material without permission from the author of the original scripts.
Lawyers representing Shazam, the company set up by Sullivan prior to his death in 2011, told the court that the dining experience made extensive use of copyrighted material. They claim it exploits the “distinctive character traits conceived by John Sullivan” and his characters’ “signature phrases and ways of speaking” in order to sell tickets.
“The sitcom constitutes one of the most valuable properties in British television,” the barrister Jonathan Hill, who is leading Shazam’s legal team, told the judge. “The outcome of this claim could have potentially very serious ramifications for [Shazam’s] exploitation of its intellectual property in relation to the sitcom.”
Among other issues the judge will consider are whether it is possible to copyright the phrase “shut up you tart”, whether “lovely jubbly” is a generic south London saying or was created by Sullivan, and whether Del Boy’s mangled use of French phrases such as “creme de menthe” can be protected under law.
“Del uses French as a manifestation of his desire to appear sophisticated but often undoes that desire by often getting it wrong/mangled,” Shazam’s lawyers argue in a written filing. “These are not purely verbal gags but part of Del’s character as they demonstrate Del’s need to put on a front, to sound impressive and sophisticated, even if actually wrong.”
The law firm Ashfords, which is representing Shazam, argue the dining experience is a breach of copyright law and is guilty of passing off – essentially tricking customers into thinking it was an officially endorsed product.
“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,” they said.
The operators of the show contend that the Only Fools and Horses characters cannot be protected by copyright, and that their production is a clearly an unofficial homage that is permitted under fair dealing restrictions.
A key issue is whether the scripts of Only Fools and Horses are “literary works” – which enjoy a higher standard of copyright protection – or “dramatic works”. The court will also have to consider whether a legally permitted pastiche of a copyright work needs to be noticeably different from the original material.
The outcome of the case could have implications for other pastiche or tribute works based on copyrighted material, potentially redrawing the line between illegal knockoff work and authorised parody.
