A self-published children’s author has failed with a copyright infringement claim against John Lewis over the retailer’s 2019 Christmas TV advertisement and spin-off book.
Fay Evans claimed the ad and storybook about a dragon named Excitable Edgar bore a ‘striking similarity’ to, and infringed the copyright of, her book Fred the Fire-Sneezing Dragon, which she published in 2017. But she failed to convince the High Court ‘on the balance of probabilities’ that any of the creative team who worked on the John Lewis/Waitrose ad saw Fred until after the 2019 advert aired and Excitable Edgar was launched.
The team began pitching ideas about a ‘lonely dragon’ the year before Evans’ book was released, the court was told. Evans’ lawyers, Brandsmiths, argued that the author was inundated with messages about the similarities between Fred and Edgar. Both dragons are depicted as sad characters unable to control their fire-breathing abilities.
Giving judgment, Her Honour Judge Melissa Clarke, sitting as a judge of the High Court, praised the ‘professional, thoroughness and care’ of the John Lewis creative team. The team included advertising agency and co-defendant DDB.
‘[I understand] how they feel that their reputations… have been tarnished by the claimant’s allegations,’ the judge said. ‘Because of those concerns, and because the claimant for the last three years and more has carried on a media campaign publicising her allegations of copyright infringement, which have been unsuccessful in this court, I will make a declaration of non-infringement and an order requiring the claimant to publicise this judgment on her website.’
Kendal Watkinson, instructed by Brandsmiths, appeared for Evans; Michael Hicks, instructed by Lewis Silkin LLP, for John Lewis and DDB.
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