John Lewis have emerged triumphant from an epic copyright dispute in the High Court, centring on two green dragons.
The children's author Fay Evans claimed that the retailer had copied elements from her debut book Fred the Fire-Sneezing Dragon for their 2019 Christmas advert featuring Excitable Edgar. Both the book and the advert feature dragons that initially struggle to make friends due to their chaotic fire-breathing tendencies.
Her Honour Judge Clarke dismissed the claim and held that there was "not a scrap of evidence" that John Lewis had seen the author's book before the court proceedings.
It is important to be aware that, under the Copyright Designs and Patent Act 1988, copying is an essential ingredient for copyright infringement. This may sound obvious, but if you cannot show the Court that the alleged infringer had ever encountered your work, you are likely to struggle to convince the Court that they copied it.
On this point, John Lewis' lawyers argued that there was no basis to claim that the retailer had ever seen the author's book, and claimed the book had enjoyed only "limited sales". The Judge noted also that John Lewis began drafting their dragon advert in 2016, but the author's book was not published until 2017.
Ultimately the Judge was "satisfied on the balance of probabilities that... there can have been no copying" and has ordered the author to publish the outcome of the proceedings on her website.
A spokesman for John Lewis and Adam & Eve DDB (the creative agency behind the ad) said: "We take great pride and care in our Christmas advert and are glad that the judge recognised the originality of Excitable Edgar.
"There can be no copying if the work alleged to have been copied has not been accessed (i.e. seen, in this case) by those said to have copied it,"
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