John Lewis advert with dragon did not infringe author’s copyright, judge rules
Fay Evans brought legal action against the retailer and advertising agency adam&eveDDB over the 2019 John Lewis Christmas advert and a spin-off book.
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Your support makes all the difference.A children’s book author who claimed John Lewis had infringed her copyright in its Christmas advert about an excitable dragon has lost her High Court case.
Fay Evans brought legal action against the department store company and advertising agency adam&eveDDB over the 2019 John Lewis Christmas advert and the spin-off illustrated children’s book, Excitable Edgar.
In the advert, Edgar the dragon’s excitement about festivities in his village sees him accidentally melting the ice rink, reducing a snowman to a puddle and setting fire to a Christmas tree.
Ms Evans alleged that John Lewis or the agency had copied parts of her book, Fred The Fire-Sneezing Dragon, published in September 2017, infringing her copyright.
The High Court in London heard that in Ms Evans’ book, Fred accidentally emits fire when he sneezes, leading to him accidentally melting ice-cream cones in his school’s tuck shop, burning books and setting trees on fire while on a run.
At a hearing in January, John Lewis and the ad agency disputed the claim, arguing there were “numerous and substantial differences” between Ms Evans’ book and the advert, and that no-one involved in the making of the advert or spin-off book was aware of Fred The Fire-Sneezing Dragon.
The two companies also said that the advert was based on a concept designed in 2016, which was pitched to John Lewis in 2016, 2017 and 2018 before being chosen in 2019.
In a judgment on Monday, Judge Melissa Clarke dismissed Ms Evans’ claim.
She said: “The dragon is a creature of myth, dating back to ancient times and found in cultures across the world.
“As a mythic animal, its appearance, characteristics and personality are not fixed, but have been reinterpreted through the years to suit the purposes and culture of the person utilising it.”
Judge Clarke ruled that the people involved in making the Christmas advert or the spin-off book had not seen Ms Evans’ book and therefore could not have copied it.
The court heard that up to October 31 2019 only 914 copies of Fred The Fire-Sneezing Dragon had been sold, with more than 700 of those coming out of primary school visits.
She added: “I am satisfied on the balance of probabilities that there was no access to Fred The Fire-Sneezing Dragon by any of the creatives involved in the development of the 2019 advert and Excitable Edgar, and so there can have been no copying.”
The court heard that all of the dragons in the case have ribbed fronts, spikes down their backs and two arms.
However, the judge sitting at the High Court said these are “entirely commonplace features, almost ubiquitous in depictions of dragons”.
She continued: “They have been treated quite differently in the TV dragon and Edgar compared to Fred, in terms of both the detail of those features, and their colour and general appearance.”
The judge concluded: “The similarities between Fred The Fire-Sneezing Dragon on the one hand and the 2019 advert/Excitable Edgar are few in number and can easily be explained by coincidence rather than copying.”
Following the ruling, Ms Evans said: “From today I’m looking forward to writing more original stories for children and developing Fred The Musical, ready for its premiere in July 2023 at the Liverpool Theatre Festival.”
In a counterclaim, lawyers for John Lewis and the advertising agency had asked the High Court to declare they had not infringed Ms Evans’ copyright.
Allowing the counterclaim, Judge Clarke said: “I consider that it would suit the useful purpose of making clear to the public and the industries in which the defendants and their creative partners work that the allegations of copyright infringement impugning the integrity of their creativity have been rejected by this court.”
“I consider they exit this litigation without the slightest hint or shadow of a stain on their creative integrity,” she added.
The judge also made an order requiring Ms Evans to publicise the judgment, finding that she had used the annual launch of the John Lewis Christmas advert “as a hook to gain more publicity to raise her profile as an author and drive book sales”.
A spokesman for John Lewis and adam&eveDDB said: “We take great pride and care in our Christmas advert and are glad that the judge recognised the originality of Excitable Edgar.
“We are pleased that the matter is now resolved after the court found there was no copyright infringement.”