Shazam Productions, the firm set up by writer John Sullivan, took legal action against Only Fools the (cushty) Dining Experience which featured the iconic characters of Del Boy, Rodney, Uncle Albert, Cassandra, Boycie, and Marlene.
Actors playing the characters would interact with diners during the show, drawing from the BBC sitcom during scripted and improvised scenes as a three-course meal is served and a pub quiz takes place.
Shazam sued for copyright infringement, accusing the dining experience of “passing off” and potentially affecting the authorised West End Only Fools and Horses musical penned by Sullivan’s son Jim and comedian Paul Whitehouse.
Those involved in the dining experience argued it was intended as a “tribute” to the famous sitcom, rather than infringing on its legal rights.
But in a judgement on Wednesday, Deputy High Court Judge John Kimbell QC concluded the dining experience was not intended as a parody, pastiche, or exaggerated version of the show, but instead presented “pitch perfect” versions of the familiar characters.
“All the characters …are lifted wholesale without any attempt to rework or rename them”, he said, adding that this “includes the characters’ full back stories, appearance, wants desires, frustrations, social context.
“It took the key moments, the key catchphrases, and most recognizable parts of Only Fools and Horses and the characters were closely reproduced in what was intended to be pitch perfect manner.
“The effect is that the audience feels they have just lived an episode.”
The judge decided that some fans of the show “would be diverted from purchasing tickets for the Musical by the existence of (the dining experience)”, adding: “Both offered the public at around the same time a chance to be reacquainted with the well-known characters from Only Fools and Horses in a new live performance setting.”
The High Court trial examined scripts from the dining experience, which featured some of the trademark catchphrases and recognisable actions from the TV sitcom.
Katherine Gillham, an actress who played Marlene in the dining experience and was involved in the development of the show, said the actors were told they could use catchphrases such as “this time next year we will be millionaires”, “cushty” and “plonker” during periods of improvisation.
She said the Del Boy character used “mangled French” and conducted dodgy deals as “essential parts of his character”, but argued this was the way a tribute show worked.
Shazam’s barrister Jonathan Hill called the show “one of the most valuable properties in British television”, and argued Sullivan’s “certain kind of genius” had contributed to the creation of the characters, particularly Del Boy, meaning it should be protected by copyright.
The judge concluded the dining experience “amounted in substance to the creation of a new episode of Only Fools and Horses adapted for a dining performance”.
Carl Steele, a partner at law firm Ashfords which represented Shazam, hailed it as a “landmark” judgment which could impact on future copyright battles.
“Only Fools and Horses is a national treasure and its writer, John Sullivan, is recognised as having been a master of his art”, he said. "The Deputy Judge held that the fictional character, Del Boy, is a copyright work.
“To my knowledge, this is the first time in this country that a fictional character has been recognised as an independent copyright work.
“The decision has major implications for those who wish to use such characters and who, in the past, might not have sought the copyright owner’s permission to do so.
“It is also, to my knowledge, the first time an English Court has had to consider the law concerning ‘fair dealing’ of a copyright work for the purposes of parody or pastiche.”
In a statement, Jim Sullivan said he is “very pleased” with the outcome of the court case “which makes it clear that copyright does actually mean something”.
“This case was about protecting John Sullivan’s legacy and the integrity of his work”, he said.
“Only Fools and Horses did not just magically appear out of thin air overnight. It took my Dad decades of personal experience, skill and hard graft to create and develop an imaginary world rich in memorable characters, dialogue, jokes, plots and history.
“Growing up I saw first-hand how hard he fought to make Only Fools work, and we are immensely proud and protective of the joy it brought, and still brings, to so many people.
“The court held today that the other side’s show is unlawful and constitutes copyright infringement and passing-off. This legal action has taken a long time and has not for one moment been pleasant for me or my family. That said, some things are worth fighting for, and this will always be one of them.”