Lawyer in the news: Oliver Fairhurst, Lewis Silkin

Who? Oliver Fairhurst, partner, Lewis Silkin.

Why is he in the news? Represented retailer John Lewis and creative advertising agency adam&eveDDB, which successfully defended a copyright claim brought by a children’s author in relation to a 2019 John Lewis Christmas advert featuring an excitable fire-breathing young dragon named Edgar.

Thoughts on the case: ‘This case boiled down to whether John Lewis and adam&eveDDB had access to and copied the claimant’s book. The judge found decisively that they had not, and along the way considered some wider legal points.

‘Firstly, the claim had been defined by a publicity campaign generated by Ms Evans, presenting John Lewis and adam&eveDDB as Goliath to her David. For that reason, we asked the court not only to dismiss the claim but also to order that Ms Evans publicise the failure of her claim on her website and social media channels. Such an order had never been made against an unsuccessful claimant in a copyright case before.

‘Secondly, the judge found that a defendant must have had “access and not just the possibility of access” in order to have copied. In the age of the internet, this is an important development in UK copyright law – just because something is available online does not mean that a defendant can be presumed to have seen it. The court would need both the possibility of access and other circumstances allowing the inference to be drawn.

‘Thirdly, the availability for the protection of characters as literary copyright works is increasingly being recognised, increasing the risk for those imitating characters.’

Dealing with the media: ‘The press needed to be aware that they were only receiving one side of the story from the claimant. As the judgment shows, the true position was different. The publicity order shows that there can be consequences to trying to generate press for one’s claim – live by the sword, die by the sword. There can also be costs consequences of going too far.’

Why did you become a lawyer? ‘I wanted to do something intellectually challenging. Luckily, I have ended up working with clients who tick that box. The legal issues that will arise from AI and other technology are another area that will keep me engaged.’