Fay Evans v John Lewis Plc
| Jurisdiction | England & Wales |
| Judge | Melissa Clarke |
| Judgment Date | 03 April 2023 |
| Neutral Citation | [2023] EWHC 766 (IPEC) |
| Docket Number | Claim No: IP-2021-000111 |
| Court | Intellectual Property Enterprise Court |
[2023] EWHC 766 (IPEC)
HER HONOUR JUDGE Melissa Clarke
Sitting as a Judge of the High Court
Claim No: IP-2021-000111
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BUSINESS AND PROPERTY COURTS
INTELLECTUAL PROPERTY ENTERPRISE COURT
Rolls Building
New Fetter Lane
London
Ms Kendal Watkinson (instructed by Brandsmiths) for the Claimant
Mr Michael Hicks (instructed by Lewis Silkin LLP) for the Defendants
Trial dates: 30 and 31 January 2023
INTRODUCTION
The dragon is a creature of myth, dating back to ancient times and found in cultures across the world. As a mythic animal, its appearance, characteristics and personality are not fixed, but have been reinterpreted through the years to suit the purposes and culture of the person utilising it. In the earliest tellings, the dragon was malevolent, destructive or fear-inspiring, and often all three. In the Old Testament, a dragon is used as a cypher for Satan himself and is described in terms including:
“His sneezes flash forth light, and his eyes are like the eyelids of the morning. Out of his mouth go burning torches; sparks of fire leap forth. Out of his nostrils smoke goes forth, as from a boiling pot and burning rushes. His breath kindles coals, and a flame goes forth from his mouth.”
(Job 41:15, 18–21, King James Bible)
The idea of dragons sneezing and breathing fire, and that such fire can be put to useful purposes such as kindling coals, is therefore very old indeed.
The Claimant is a children's book author who has self-published three books. One of these is a book called “ Fred the Fire-sneezing Dragon” (“ FFD”), with illustrations produced by Ms Lisa Williams, a freelance illustrator, who has since assigned all her right of copyright in FFD to the Claimant by way of written assignment dated 3 July 2021. This included an assignment of the right to sue for past, present and future infringements.
FFD is the story of Fred, a young dragon who is a school pupil in a school otherwise populated by human characters, including children, adult teachers and staff. Fred is drawn in a cartoon-style and the story is set in a contemporary context. Fred accidentally emits fire when he sneezes, with unfortunate and accidental results, such as burning books and pencils, melting ice-cream in the school tuck shop and setting fire to trees while on a cross-country run. This causes him to be teased and makes him sad. However, his sneezes ultimately save the day when the school canteen oven is broken and he is able to cook the school lunch, gaining the approbation of the school cook and his peers. The story is told in rhyming couplets, and each sneeze is prefaced by a repeated chorus describing what Fred feels, which is intended to be accompanied by actions as illustrated in the front of the book, for children to join in at each chorus.
It is the Claimant's case that FFD was first made available to the public at the official book launch on 7 September 2017. Since that date the Claimant has performed live readings of FFD, mainly at primary schools (and those normally in the North-West of England) but also at a few networking events. The Claimant has sold copies of FFD in conjunction with such live readings and events and also on Amazon and her own website, in small numbers. Between its launch in September 2017 and October 2019, she has disclosed sales totalling 914 copies, 709 of which have been via schools, 76 to family and friends, 68 on Amazon and 61 from her website.
The First Defendant (“ JLP”) is one of the UK's best known retailers through its department store brand John Lewis and supermarket brand Waitrose. Every year it releases a lavish television advertisement to support its Christmas offerings (“ Christmas Advert”). These are characterised by their high production values and heart-warming messages. Since 2009 the Christmas Advert has been created by the Second Defendant (“ adam&eveDBB”), part of the Omnicom group of companies. Up to 2019 the Christmas Advert promoted only the John Lewis brand, but for 2019 JLP decided to use it to promote both John Lewis and Waitrose.
adam&eveDBB is a multi-award-winning creative advertising agency. It has earned too many plaudits to list, but these include that it has been named Campaign's Advertising Agency of the Year six times, and at the Cannes Lions industry awards it was named Global Agency of the Year in 2014 and 2018 and Europe's Top Agency of the Decade in 2020. It has also won multiple industry awards for its work for JLP, which is one of adam&eveDBB's flagship clients.
The 2019 Christmas Advert, released on 14 November 2019, was a live-action film featuring an excitable young dragon who can't help releasing fire, in which the dragon was created by CGI (“ 2019 Advert”). The 2019 Advert was created by adam&eveDDB (to JLP's brief and with JLP's input) who outsourced the CGI aspects to a specialist company called Untold Studios Ltd (“ Untold”), and who worked with a director, Dougal Wilson and an external production company, Blink Productions Limited.
The young dragon in the 2019 Advert is also living in a human world, set in an unspecified time in the past, which appears somewhat medieval. He is shown running excitedly to help two children build a snowman, but in his excitement emitting flames which reduce it to a puddle. He is thrilled to see skaters on the village rink, and runs to join them, but inadvertently melts the ice so they are all left standing in cold water. He attends the unveiling of the splendid Christmas tree in the village square, and tries to control his excitement by tying his mouth shut with a scarf, but flames shoot out of his ears and burn it to the ground. The attendant crowd are displeased. He retreats sadly to his home, and only comes out when his best friend, a young girl, gives him a present. That turns out to be a Christmas pudding, which he carries proudly into the village Christmas banquet, and lights with his fire, to cheers from all.
The Defendants' case is that the 2019 Advert was based on a concept originally conceived and outlined by a leading creative at adam&eveDBB, Simon Lloyd, in 2016. They have disclosed a copy of a four-page document which the metadata shows was created on 24 February 2016 (“ 2016 Outline”) which they say was one of three very similar versions of the concept created around that time. The Claimant accepts the 2016 Outline was created on that date.
The 2016 Outline states that the lonely dragon was to be “the story of an adorable young dragon” who is “simply so excited about Christmas that he cannot control the flames from his mouth. He burns everything he encounters” which “is made all the more painful as all he wants to do is get involved in all the festive celebrations”. The dragon in this case appears to be living in a community of dragons in or near woods, which he is shown as flying through. His disastrous encounters include melting a snowman being built by three baby dragons, trying to decorate a Christmas tree but leaving it in cinders, melting a skating lake when trying to skate with friends, and burning wrapping paper when trying to wrap presents. He gains acceptance due to the arrival of a thoughtful gift from his friend, a candle, which allows him to channel his flames to less destructive and more useful effect. He lights the candle, and then “leaps up and lights the street lights as they run down the road. He leans in through the window of a family eating dinner and lights their Christmas pudding”. He also melts the snow on the path of a lady who is trying to clear it, earning her gratitude. At the end, he lights the candlesticks on the Christmas lunch table.
The 2016 Outline was known within adam&eveDBB as the ‘lonely dragon’ concept. It had, together with other ideas, been pitched to JLP by adam&eveDBB as a possible concept for their Christmas Advert in 2016, 2017 and 2018, but each time JLP had preferred another option. It was pitched again in 2019, with, inter alia, the ending changed from lighting candles to lighting a Christmas pudding, and this won JLP's approval.
The 2019 Advert was supplemented by a spin-off illustrated children's book called ‘Excitable Edgar’. This was commissioned by JLP from a publisher called Nosy Crow and illustrated by an illustrator named Jo Lindley. Ms Lindley drew the eponymous dragon in a simpler style than the manner in which he appeared in the 2019 Advert. Excitable Edgar was made available to purchase in John Lewis shops and Waitrose supermarkets at around the same time as the 2019 Advert was launched, as was a soft toy Edgar produced as part of the merchandising around the 2019 Advert.
The 2019 Advert was released by JLP online on 14 November 2019 and first shown in cinemas on 15 November 2019 and on television on 16 November 2019. Upon seeing it minutes after release on 14 November 2019, the Claimant immediately alleged on social media that JLP had copied FFD. The Claimant made a formal legal complaint about both the 2019 Advert and Excitable Edgar in December 2020. Following correspondence between the parties' legal advisors, she issued the Claim in November 2021.
THE RESULT
It is the Claimant's case that the 2019 Advert and Excitable Edgar infringe the copyright in FFD. For reasons which I will go on to set out, I conclude that they do not, and that the Claimant has failed to satisfy me on the balance of probabilities that the employees of JLP and adam&eveDBB working on those projects, or any of the other creatives involved including the director Dougal Wilson, Untold, Nosy Crow, and Ms Lindley, had seen FFD until after the 2019 Advert and Excitable Edgar were made and launched and the Claimant made her allegations of copying on social media.
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Here Be Dragons: Copyright Claim Slayed In The IPEC
...not mean that a defendant can be presumed to have actually seen or heard the original work. Case citation: Evans v John Lewis plc [2023] EWHC 766 (IPEC) (3 April The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought abou......