Here be dragons: copyright claim slayed in the IPEC
The Intellectual Property Enterprise Court (IPEC) has found the fictional dragon which appeared in a John Lewis Christmas advert and in a spin-off illustrated children’s book entitled “Excitable Edgar” did not infringe the copyright in a self-published children’s picture book called “Fred the Fire-sneezing Dragon” written by Fay Evans.
Background
Fred the Fire-sneezing Dragon was an illustrated rhyming story officially launched on 7 September 2017, which featured Fred, a sad and lonely young dragon living in a human world who accidentally emitted fire when he sneezed, which annoyed the human characters as the uncontrollable fiery emissions caused books and pencils to burn, ice-cream in the school tuck shop to melt and set fire to trees while on a cross-country run. However, Fred’s fiery sneezes ultimately saved the day when the school canteen oven broke, and he was able to win the affection of the humans in the story by cooking the school lunch with his flames.
John Lewis’s Christmas advert of 2019 featured an excitable young dragon called “Edgar”, who was also living in a human world. In the advert, Edgar was shown running to help two children build a snowman but, in his excitement, he produced flames which reduced the snowman to a puddle. He was also shown running to join skaters on the village ice-rink but his fiery emissions inadvertently melted the ice so the skaters were all left standing in cold water. He tried to control his excitement at the unveiling of the splendid Christmas tree in the village square by tying his mouth shut with a scarf, but flames shot out of his ears and burnt the tree to the ground. Edgar retreated sadly to his home, only coming out when his best friend, a young girl, gave him a present, a Christmas pudding, which he carried proudly into the village Christmas banquet. Edgar used his incendiary powers to cook the pudding, to cheers from all.
Issues
Ms Evans’ alleged that John Lewis’s advert and Excitable Edgar contained “striking similarities” to her self-published book, particularly in respect of the appearance of the dragons, both being child-sized, of a green colour, had ribbed fronts, triangular spikes on their heads and backs, two arms, shared some of the same facial features and were of the same general body shape. She also claimed that narrative features of John Lewis’s advert and Excitable Edgar has been copied from her book: the dragon, despite irritating and annoying the people in the story by failing to control its fiery emissions, was permitted to participate in communal life and earned applause at the end of the narrative, becoming the hero of the story by finding a use for its fire.
Decision
HHJ Melissa Clarke found that the similarities between the two fictional dragons were “few in number and can easily be explained by coincidence rather than copying”.
On the evidence, John Lewis’s advert had been based on a “lonely dragon” concept originally conceived and outlined one year and seven months before Ms Evan’s had published her book, and there was “not a scrap of evidence” that anyone from John Lewis or the creative team behind Excitable Edgar had access to Fred the Fire-sneezing Dragon.
A search for dragon-themed books undertaken before the launch of John Lewis’s advert had unearthed around 90 dragon-themed children’s books published by third parties; some had similar elements, including dragons being unable to control their fire and burning, melting and setting fire to things, which result in the dragon’s fire being put to good use, but Fred the Fire-sneezing Dragon was not among the identified books.
Although Fred the Fire-sneezing Dragon was available on Amazon and Ms Evans’ website, the judge said the possibility that any such access was actually obtained appeared to be “so remote as to be almost entirely theoretical”. Fred the Fire-sneezing Dragon had sold fewer than 1,000 copies by October 2019, mostly to primary schools in the North West of England where there was no evidence that anyone involved in the creation of John Lewis’s advert or Excitable Edgar lived, with only 120 or so copies being purchased from Amazon or on Ms Evans’ website.
HHJ Melissa Clarke found that John Lewis and the creative team behind John Lewis’s advert and Excitable Edgar had not copied Fred the Fire-sneezing Dragon, and ordered Ms Evans to publicise the judgment on her website, Facebook page and Twitter account.
Comment
The effect of Case C-5/08 Infopaq [2009] ECR-I 6569 on UK copyright law has been that even a very small part of the original work may be protected by copyright, provided it demonstrates the stamp of individuality reflective of the creation of the author or authors of the article. However, as this IPEC judgment shows, the warning given by Laddie J in the earlier IPC Media case remains a useful argument in copyright cases that focus on similarities where numerous and substantial differences exist.
As HHJ Melissa Clarke reminded us, “where one has chipped away at something, one must examine what remains carefully to assess whether it does truly reproduce elements of the author’s intellectual creation, or merely gives the illusion of it”.
This judgment also illustrates that a claimant is required to prove on the balance of probabilities that the allegedly copied work was accessed, rather than merely accessible. In Sheeran v Chokri [2022] EWHC 827 (Ch), Zacaroli J said that “irrespective of where the burden lies, infringement requires there to have been actual copying, which necessarily entails that the alleged infringer not only had access to the original work, but actually saw or heard it.”
As HHJ Melissa Clarke confirmed “the question for the Court is whether there has been actual copying, and that requires access and not just the possibility of access”. An interesting point in this internet age: the fact that something is available online does not mean that a defendant can be presumed to have actually seen or heard the original work.
Case citation: Evans v John Lewis plc [2023] EWHC 766 (IPEC) (3 April 2023)
