The High Court has now agreed with John Lewis that its advert, created in conjunction with advertising agency adam&eveDBB, was created independently and there was no copyright infringement (the full judgment can be found here).
A case of David and Goliath?
Fay Evans is the author of "Fred the Fire-sneezing Dragon”, published in 2017. Ms Evans commenced a publicity campaign against John Lewis and adam&eveDBB within hours of the release of Excitable Edgar's advert, quickly gaining traction in the press and on social media.
Ms Evans based her claims of copyright infringement on similarities between the respective dragons and various scenes, which both followed a story arc of the dragons causing various mishaps before saving the day.
Importance of timeline
Crucial to John Lewis' defence was the evidence that its Excitable Edgar was based on an idea pitched to it in 2016, a year before Ms Evans' book was published.
As succinctly summarised by the Court: "There can be no copyright infringement without copying, and 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."
The defendants referred to the 2004 case of IPC Media v Highbury-Leisure, which cautioned parties not to focus just on the similarities between copyright works, but also to consider differences. Where only similarities are analysed, this may result in an incorrect finding of copying. HHJ Melissa Clarke's judgment in this case confirms that IPC Media remains good law, something which had been queried given its age and the recent "intellectual creation" test (see my blog: First Response: Copyright in UK designs – artistic quality no longer required?).
The Court also ordered Ms Evans to publicise this judgment on her website and social media accounts (where she had heavily publicised the dispute) and made a declaration of non-infringement. This is an unusual move, at the request of John Lewis and adam&eveDBB who were frustrated by the media campaign against them.
First and foremost, this case acts as a helpful reminder to all creatives of the importance of keeping records of pitch documents and the evolution of ideas.
However, this decision may be remembered for appearing to be the first time a claimant of copyright allegations has been ordered to publicise the failure of its claim. The Judge was sympathetic to the defendants, acknowledging the importance of reputation for creatives and the damage which can be caused by allegations of copying. This will no doubt be welcomed by creative industries, and is a warning to those who launch publicity campaigns to support their cases – they may also be ordered to publicise their failure.
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