Creative people often live in fear of allegations that they have copied someone else's work. However, as a High Court case concerning a CGI dragon featured in a John Lewis TV advert showed, the law provides a route to vindication for those on the receiving end of such accusations.
The central character in the retailer's heart-warming 2019 Christmas advert – which was produced by an award-winning advertising agency – was a young dragon who cannot help releasing fire. A spin-off children's book, featuring a dragon called Excitable Edgar, was subsequently published.
A children's author launched copyright infringement proceedings against John Lewis plc and the agency, alleging that Excitable Edgar had been copied from a dragon character who featured in a book she had self-published about two years prior to the advert's appearance.
Dismissing her claim, however, the Court noted that her book had been published in very small numbers, mainly to primary school children in one region of the UK. It was extremely unlikely that anyone involved in the creation of the advert or Excitable Edgar had access to the book prior to the launch of the John Lewis campaign. The possibility that there had been any actual access appeared so remote as to be almost entirely theoretical.
It was John Lewis's and the agency's case that the advert was based on a concept originally conceived and outlined by one of the latter's leading creatives prior to the book's publication. The Court found that similarities between the author's dragon and Excitable Edgar were, in any event, few in number and could easily be explained by coincidence.
In making a declaration of non-infringement in favour of John Lewis and the agency, the Court expressed admiration for all those involved in the creation of the advert and Excitable Edgar. They exited the litigation without the slightest hint of a stain on their creative integrity. The author was directed to publish an agreed statement, reflecting the outcome of the case, on her website and on her Facebook and Twitter accounts. The notice included a link to the Court's judgment.
