The law of copyright: whose dragon sneezed first?
A recent ruling has seen high street giant John Lewis win a copyright court case over a self-published author for its Christmas advert featuring Edgar the dragon.
Alex Speirs, senior associate in our dispute resolution team, discusses the case.
Case background
Self-published author, Fay Evans, took a fiery stand against retail giant John Lewis in a claim for the copyright infringement of her children’s story “Fred the Fire-sneezing Dragon” (FFD).
Ms Evans claimed that John Lewis copied her book in creating its 2019 Christmas advert (2019 Advert) and subsequent book “Excitable Edgar”.
The Judge ruled that there had been no copyright infringement as she was satisfied “that there was no access to FFD by any of the creatives involved in the development of the 2019 Advert and Excitable Edgar, and so there can have been no copying.”
Ms Evans claimed that both the storyline of the 2019 Advert and Edgar’s character bear a striking resemblance to her story, FFD.
Story similarities
The competing stories each involve a lonely dragon living in a human world, who struggles to control its fire, and whose accidental emissions of fire bring destruction to the community.
Both stories end with each dragon learning how to harness its fire-breathing power for good – cooking food for the community (Fred) or setting fire to a Christmas pudding (Edgar) – at which point the dragon is welcomed back into the community as a local hero.
The claim
To successfully bring her claim, Mrs Evans needed to demonstrate to the court that:
(a) she owned the copyright in the protected work;
(b) the protected work was actually copied by John Lewis; and
(c) as part of that, that John Lewis had accessed the protected work to then copy it.
In this case, it was established that Ms Evans owned the entirety of the copyright in FFD. However, it was up to the court to determine whether John Lewis had actually copied FFD and whether it had actually accessed FFD prior to creating the 2019 Advert.
When comparing the two stories, there were striking similarities between the storylines as set out above.
However, when examining the physical characteristics of Fred and Edgar, the size and shape of the dragons were different (Fred was taller and leaner, and Edgar was “dumpier” and more “dog like”).
Furthermore, the Judge held that the fact that both dragons were green, had ribbed stomachs and spikes down their backs and tails did not amount to “the expression of the Claimant’s… own intellectual creation such that it has at material times been protected by copyright”.
The use of the colour green is the most common colour used for dragons and having spikes on the back and tail is entirely commonplace for the depiction of a dragon.
The ruling
Whilst it is admitted that there were similarities in the storylines, the deciding factor, in this case, was that John Lewis had not had access to FFD prior to creating the 2019 Advert, and therefore could not have copied it.
As a result, the Judge made a declaration of non-infringement and an order requiring Ms Evans to publicise the judgement on her website.
What can we learn?
This case demonstrates the difficulties that can arise when claiming copyright infringement. Simply because two works are strikingly similar does not mean a claim will be successful..
For more information on protecting copyright and copyright infringement, please contact Alex on 0191 211 7997 or [email protected].