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By Dr Sabine Jacques
On 9th March 2023, John Kimbell KC visited UEA as part of the Law School guest lecture series. He discussed the case of Shazam v Only Fools and Horses (OFAH)  EWHC 1379 (IPEC). The facts of the case are relatively straightforward: the defendants had organised themed dinners called "Only Fools The (cushty) Dining Experience," in which guests enjoyed a sit-down dinner served by actors playing the characters from John Sullivan's iconic TV sitcom Only Fools and Horses, including the main protagonists of Del Boy, Rodney, and Uncle Albert. The proceedings mainly focused on two questions: 1) whether copyright exists in fictional characters and, if so, whether there was a copyright infringement; and 2) whether the parody exception could justify the defendants' use.
Regarding the protection of fictional characters, John Kimbell KC began by referring to section 1 of the Copyright, Designs and Patents Act 1988, which outlines the categories of subject-matters protected by copyright. He then interpreted this section in relation to section 3, which provides further guidance on what may be considered a literary work. John Kimbell KC explained that, based on the rare English cases and scholarship, fictional characters are not protected under UK copyright law. However, he didn't stop there. Since part of copyright law had been harmonised in the EU prior to Brexit, John Kimbell KC decided to apply the Cofemel test (Cofemel v G-Star Raw (C-683/17)). While this test was originally developed to address the infringement of clothing items, the Court of Justice of the European Union (CJEU) clarified the meaning of "work" for the purpose of copyright. The CJEU established two cumulative criteria: 1) the existence of an original object and expression of intellectual creation; and 2) a subject-matter that must be identifiable with sufficient precision and objectivity. John Kimbell KC concluded that Del Boy was a fictional character that met the Cofemel requirements, and therefore, constituted a work protected by copyright.
As John Kimbell KC determined that an infringement of the reproduction rights of the right-holders had occurred, the next issue was the potential application of the parody exception (section 30A CDPA). Notably, this was the first time the parody exception had been applied since its introduction in 2014. The exception mirrors the exception in Article 5.3(k) of the EU InfoSoc Directive 2001/29. Since it had roots in EU law, John Kimbell KC considered the CJEU's interpretation of parody in Deckmyn (Deckmyn v Vandersteen (C-201/13)), where a member of an anti-immigration party used a famous children's comic book cover to make a discriminatory political comment about the mayor of Ghent's spending of public funds habits on recent Muslim immigrants. The CJEU established two main requirements for parody: it must "constitute an expression of humour or mockery" and "evoke an existing work while being noticeably different from it" (Deckmyn, at para 20).
One unique aspect of the Only Fools Dining Experience case is that the work from which it borrows is also humorous in nature. John Kimbell KC sympathised with the argument that the defendants' use evoked the sitcom but also dissociated itself from it, as it was a dining experience, and constituted an expression of humour. This reasoning would lead to the conclusion that the allegedly infringing use could be justified by the parody exception. However, John Kimbell KC ultimately decided otherwise, given the ‘lack of critical distance’ between the original work and its parody (Shazam, at 175).
It was a great honour for UEA Law School to host John Kimbell KC and his lecture will undoubtedly spark ongoing discussions among legal scholars and fans of parody alike. While creators will appreciate the newfound flexibility provided by the clarification of copyright protection for fictional characters, questions remain about the scope of this protection and whether the exhaustive list of protectable subject-matters under UK copyright law is still relevant. As for the parody exception, John Kimbell KC's approach, which is steeped in humanities, is a positive development. However, there are still unanswered questions about the limits of humour allowed under this exception and whether UK courts will treat section 30A CDPA as a single exception or as three separate exceptions, as has been done in a recent German case involving pastiche.
A recording of the event is available:
Blog image - Attribution: "Publicity Image for 'Only Fools and Horses' - Courtesy of BBC Television