A fiery copyright infringement battle: Fay Evans v John Lewis PLC and DDB UK Ltd

John Lewis and its advertising agency adam&eveDDB have won a case in the Intellectual Property Enterprise Court against children’s author Fay Evans. Ms Evans brought a case for copyright infringement, alleging that there was a "striking similarity" between the dragon in her children's book and John Lewis' 2019 Christmas advert featuring a dragon. The claim was dismissed, holding that there was no copyright infringement.  

What were Ms Evans' claims?

Ms Evans' book, "Fred the Fire-Sneezing Dragon", was published in 2017. It is a story about a dragon pupil in a school otherwise populated by human characters, whose fiery sneezes cause chaos. In Christmas 2019, John Lewis' advert told the story of a CGI-created dragon named Edgar, who when living in the human world accidentally caused issues by emitting flames. The advert was turned into an illustrated children's book by publisher Nosy Crow.

Images of Fred alongside Edgar, in the advert and the book, are reproduced below:

Ms Evans asserted that Fred the Fire-Sneezing Dragon contained original literary and artistic works and submitted that Edgar reproduces other features of Fred which amount to elements of the expression of the intellectual creation contained in her book. Namely, that the dragon is child-sized and has a green colour, ribbed front, triangular spikes on head and back, two arms, some facial features and has the general body shape of the dragon in the claimant's book.

As a result, Ms Evans claimed that Edgar in the 2019 television advert and book reproduced elements of the expression of the intellectual creation contained in her book about Fred, which are not found in the 2016 outline of the dragon as created by adam&eveDDB. As such, Ms Evans sought:

• Damages or an account of profits.
• An injunction against further copyright infringement in her Fred dragon.
• An order for delivery up of infringing materials or articles.
• An order for dissemination.
• Publication of any judgement/order made in this case at the defendant's expense, costs and interest.

Highlighting John Lewis' reputational concerns of potentially being tarnished by allegations of copyright infringement, Judge Clarke commented that they "exit this litigation without the slightest hint or stain on their creative integrity".

The claim was dismissed and John Lewis' counterclaim for making a declaration of non-infringement and a publicity order was upheld. Judge Clarke ruled that the retailer’s advert, and the accompanying illustrated children's book, did not infringe the claimant's copyright. Ms Evans was directed to publicise the judgement on her website, Facebook and Twitter pages for at least 6 months as a means to provide justice to the defendants and protect their creative integrity. 

Thoughts on the decision

The decision echoes the principle that copyright subsists in intellectual creations/expressions and not merely the idea behind them. While the judge's finding that the general idea of a fire breathing dragon causing havoc in a human world unsurprisingly did not attract copyright protection, the decision acts as a reminder of the available remedies to a successful party. This included a publicity order against Ms Evans in attempt to redress the criticisms against John Lewis and DDB.

Bethany Wheeler-Fowler, Solicitor

This decision serves as a timely reminder of the threshold required for copyright infringement – copying of a work is required, which of course cannot occur if the work has not been accessed by the purported defendants.

Prem Shah, Trainee Solicitor