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Background

Children’s author Fay Evans alleged that John Lewis’ 2019 Christmas advert infringed copyright in her “Fred the Fire-Sneezing Dragon” book self-published in 2017.

The protagonist in Ms Evans’ novel, Fred, is depicted as a solitary dragon who struggles to control his fire-breathing capabilities in several melting and destructive sequences, but concludes with befriending humans. Focusing on the dragon, Ms Evans claimed that her copyright was infringed by John Lewis’ advert with “Excitable Edgar” who similarly invokes melting and destruction but goes on to warming food for his human friends.

Ms Evans reported that she was inundated with messages about the similarities between the two characters, as they both illustrated the concept of despondent dragons unable to control their fire-breathing.

However, crucially she accepted the evidence that John Lewis’ advert outline was created in 2016 (the “Advert Outline”), a year preceding the publication of her book.

Court’s ruling

On 3 April 2023, Her Honour Judge Melissa Clarke in the IPEC dismissed Fay Evans’ copyright infringement claim against John Lewis and its advertising agent. (See the judgment here)

Key points in her ruling include the following:

1. Despite Fred’s “child-size” appearance being an element protected by copyright, John Lewis’ larger depiction of a dragon was substantially different enough not to raise a presumption of copying.
2. The choice of green for Fred was not protected by copyright and was present in the Advert Outline. The judge stated that “green was a natural choice” for both dragons and she was “satisfied on the balance of probabilities that…there can have been no copying.”
3. Other aspects of the dragon (its facial features, ribbed front and triangular spikes) might have been copyright-protected, but some of these facets were also in the Advert Outline and were not similar enough to raise the copying presumption.
4. The remaining features which were not in the Advert Outline (i.e. Fred’s child-like size, ribbed stomach and triangular spikes) were not similar enough to amount to copying when viewed together. In fact, the judge considered that the differences were “few in number and can easily be explained by coincidence rather than copying”.
5. The narrative elements were also not enough to substantiate a claim of copyright, especially as Evans was unable to prove John Lewis had access to her book. The judge confirmed that “there can be no copyright infringement without copying, and there can be no copying if the work alleged to have been copied has not been accessed by those said to have copied it”.
6. The fact that Evans’ novel only sold 1000 copies by October 2019 in limited areas highlighted John Lewis’ inability to access her ideas. The judge concluded there was “not a scrap of evidence” that John Lewis or its team had any access to Evans’ book.

The case did not end there as the judge agreed to make a declaration of non-infringement and a publicity order in the defendants’ favour commenting:

“[I understand] how they feel that their reputations… have been tarnished by the claimant’s allegations... because of those concerns, and because the claimant for the last three years and more has carried on a media campaign publicising her allegations of copyright infringement, which have been unsuccessful in this court, I will make a declaration of non-infringement and an order requiring the claimant to publicise this judgment on her website.”

In doing so she praised how “professional, thorough and careful” the John Lewis creative team and advertising agency had been in the creation of the 2019 advert and Excitable Edgar.

Key takeaway

Copyright cases such as these between a large corporation and an individual often grab the headlines and are rapidly aired on social media. Crucially these initial David v Goliath headlines can linger longer in the public’s memory than details of the court’s ultimate ruling putting the record straight several years later.

Here to attempt to redress the balance, the judge took the unusual step of ordering Ms Evans to publicise the failure of her claim on her website and social media accounts for at least six months. The creative industries can take some comfort in this approach, although how far such measures can go in correcting the balance and restoring reputational damage suffered during such virulent media campaigns remains to be seen.

Authored by Sana Malik