Bird & Bird Poland, the Centre for Antitrust and Regulatory Studies of the University of Warsaw, Faculty of Management, and the Polish Competition Law Association invite you to a conference on the private enforcement of competition law.

Background

Children’s author Fay Evans alleged that John Lewis’ 2019 Christmas advert infringed copyright in her “Fred the Fire-Sneezing Dragon” book self-published in 2017.

The protagonist in Ms Evans’ novel, Fred, is depicted as a solitary dragon who struggles to control his fire-breathing capabilities in several melting and destructive sequences, but concludes with befriending humans. Focusing on the dragon, Ms Evans claimed that her copyright was infringed by John Lewis’ advert with “Excitable Edgar” who similarly invokes melting and destruction but goes on to warming food for his human friends.

Ms Evans reported that she was inundated with messages about the similarities between the two characters, as they both illustrated the concept of despondent dragons unable to control their fire-breathing.

However, crucially she accepted the evidence that John Lewis’ advert outline was created in 2016 (the “Advert Outline”), a year preceding the publication of her book.

Court’s ruling

On 3 April 2023, Her Honour Judge Melissa Clarke in the IPEC dismissed Fay Evans’ copyright infringement claim against John Lewis and its advertising agent. (See the judgment here)

Key points in her ruling include the following:

1. Despite Fred’s “child-size” appearance being an element protected by copyright, John Lewis’ larger depiction of a dragon was substantially different enough not to raise a presumption of copying.
2. The choice of green for Fred was not protected by copyright and was present in the Advert Outline. The judge stated that “green was a natural choice” for both dragons and she was “satisfied on the balance of probabilities that…there can have been no copying.”
3. Other aspects of the dragon (its facial features, ribbed front and triangular spikes) might have been copyright-protected, but some of these facets were also in the Advert Outline and were not similar enough to raise the copying presumption.
4. The remaining features which were not in the Advert Outline (i.e. Fred’s child-like size, ribbed stomach and triangular spikes) were not similar enough to amount to copying when viewed together. In fact, the judge considered that the differences were…