[Guest post] Copyright in fictional universes

Del Boy from Only Fools and Horses

From the final frontier of Star Trek to the Lord of the Rings’ Middle Earth, fictional universes are one of the most important and decorated parts of creative fiction. However, how does the law treat these worlds? Can there be such a thing as a fictional universe copyright or is it fiction in of itself?

The question of whether or not copyright can subsist in fictional universe came to fruition in the case of Shazam v Only Fools the Dining Experience and Others [2022] EWHC 1379. While this case is renowned for granting the first character copyright to Only Fools and Horses protagonist Del Boy under UK law, presiding judge John Kimball’s ratio might go considerably further.

In addition to the argument that copyright could subsist in characters under the recent developments under EU law, it was submitted by the claimant that the accumulative body of scripts in Only Fools and Horses could constitute a single literary work in their own right. In other words: copyright would subsist in the entirety of the Only Fools and Horses universe as opposed to a series of singular works.

This argument was swiftly rejected by Judge Kimball, who commented that Mr Sullivan, the creator of Only Fools and Horses, had no idea when the “saga would end” and that there is no evidence that the scripts should be treated as a “unitary whole.”

However, it is wrong to immediately take this conclusion as an inherent rejection of copyright in fictional universes outright as it is ambiguous as to what would happen if a TV show or series of books were to meet Judge Kimball’s ratio. There are unquestionably series that are designed to be a unitary whole, where the plot from one episode continues into another and the creators have a clear conclusion planned.

It may seem logical to separate Only Fools and Horses into a stream of separate copyrights but such a conclusion is more flawed when considering the more constructive episode structures. Many modern TV shows rely upon the context of their previous episodes and were written to encompass a single overarching story. A four-part crime drama written as one and released in instalments is much more likely to be considered a single copyright than the episodic structure of sitcoms.

These creations are of course dependent on the understanding gained from previous episodes and as such it is possible to envisage a pathway to protecting the totality of the entries in the series under copyright. It may be then that copyright has finally provided some guidance on when a series of works constitutes a single copyright. A point which has created considerable confusion in past cases such as Electronic Techniques (Anglia) Ltd v Critchley Components Ltd [1997] FSR and Sweeney v Macmillan Publishers [2001] EWHC Ch 460.

Judge Kimball suggests that whether a series consists of several copyright works or is rather a single, cohesive one is dependent on the commonality between the works and if they were intended to be consumed together with a clear identifiable end point. This guidance may not be as useful for non-fictional entities such as the circuit diagrams in Electronic Techniques but it remains the first doctrinal guidance on the issue since Sweeney v Macmillan’s comments on successive book chapters expanding a single literary copyright.

A very real and non-fictional Kat universe

That said, it is questionable whether the work as the series is truly reflective of a fictional universe. It is disingenuous to find that the grouping of a few episodes or entries in a series is in of itself akin to a universe: opining this way ignores the nature of spin-offs and works that are not contextually attached to one another. For example, protecting the series of Only Fools and Horses does not protect the universe which is further developed by the supplementary shows The Green Green Grass and Rock and Chips.

Consequently, there does remain a question of whether this approach is the correct application of Cofemel v G-Star Raw (C-683/17) [IPKat here]. For reference, Cofemel confirmed the two-part test for copyright that led to the protection of Del Boy as a fictional character:

• A work is original in the sense that it is its author’s own intellectual creation and;
• Such a work is identifiable with sufficient objectivity and precision.

A universe could, if sufficiently described, fulfil these requirements much like a character can. Despite their metaphysical nature, universes can be defined by their physics, aesthetics, lore and concepts much like any other fictional entity. Is Hogwarts or the Star Ship Enterprise any less identifiable than Del Boy? If there is no difference between them, then what justification does exist in law to protect the character but not the stage on which their story is carried out?

Of course, these are mere locations in the overarching universe and, again, it would be wrong to think of this as a copyright in an entire fictional world. However, if it is accepted that characters and places are protectable, then copyright in the universe may not be far away. At least if the two-stage test in Cofemel is applied correctly.

The court in Shazam finds a strict dichotomy between characters and universes but it is unclear why it reached this conclusion other than by focusing on copyright subsisting as a series. From an ontological perspective, it is hard to decipher what practical differences exist between a character developed over several entries and a universe. Judge Kimball specifically noted that Del Boy was formed from multiple “scripts” in the series but did not fully explain why a character could be formed from several works but a universe could not.

It is important to note that this argument was not raised by the claimant during the case but there may be merit in protecting the universe more like characters than a copyright subsisting over several distinct episodes.

It might be that UK judiciary continues to reject the notion of copyright in a fictional world and it might also be a considerable length of time before such a question is raised again before a court. Despite this, the move towards protecting characters is only a positive sign for universes given the similarities of their metaphysical nature. Whether copyright will one day protect these works is unknown, but it is clear that – given the growing relevance (and popularity) of fictional worlds and franchising – these creations are more important than ever.