intellectual property

When your copyright claim disappears in a puff of smoke … !

A salutary fairy tale

Read on if you want a graphic example to understand what copyright protects.

The Dragons – Fred vs Edgar

For people of a certain age, the song “Puff the Magic Dragon” has a particular resonance. For others, it is Harry Potter fighting dragons in the Tri-Wizards’ Cup or Hiccup taming his dragon, Toothless, in Cressida Cowell’s “How to Train Your Dragon”. The point is that for every generation since St George did his act of slaying (and probably before), dragons have been a part of our culture and have been portrayed innumerable times in art and literature.

Sometimes the creatures are malevolent and other times benign but almost always misunderstood. Clearly the claimant, Fay Evans, misunderstood the fundamentals of copyright when her dragon, Fred, took on John Lewis over its 2019 Christmas ad which featured, Excitable Edgar, the lovable but fire happy dragon.

Copyright law – the basics

Copyright is the “Ronseal” of intellectual property rights; it “does exactly what it says on the tin”. In simple terms it stops people copying. The complexity comes from the fact that it only stops the copying of the “expression of the idea” and not the idea itself. In practice, this means that you need to be able to show that a defendant has reproduced a substantial part of the copyright work be that a picture, photograph, piece of literature, etc.

Accordingly, provided you have a work which is your own “intellectual creation” that is “identifiable with sufficient precision and objectivity” then it will be protected by copyright such that you have the exclusive right to prevent others copying that work. However, what copyright does not stop is someone taking an idea or having the same idea independently.

The facts of the case

In Fay Evans -v- (1) John Lewis plc; and (2) DBB UK Limited, Ms Evans accused John Lewis and its ad agency, DBB, of taking the essential characteristics of her lonely, dragon character, “Fred the Fire-sneezing Dragon”. In the debut book of the same title, Fred, got into all manner of scrapes because his sneezes were accompanied by fire leading him to be ostracised until he eventually saved the day when he was able to cook his classmates’ lunch when the school oven failed.    

For those who can remember John Lewis’ 2019 Christmas campaign, you will recall that Excitable Edgar was an adorable young dragon who was “simply so excited about Christmas that he [couldn’t] control the flames from his mouth” and he burnt everything he encountered leading him to be sad and lonely. This was painful for everyone because all Edgar wanted to do was get involved in all the festive celebrations.  Eventually, Edgar came to the rescue by using his fire to light the streetlights, clear ice from a path and put a flame a top a Christmas pudding.

Dragon hide and snake oil

At a level of abstraction, there are similarities between Fred, the fire‑sneezing dragon, and Excitable Edgar. However, this is snake oil – the similarities were worthless to Ms Evans in her attempt to prove copyright infringement.

First, many of the “copied” elements could be attributed to hundred of stories about dragons or other characters from literature. They are timeless attributes given to characters who had to find their purpose before they could be understood and welcomed into society.

Second, there was no evidence of copying. The book, “Fred the fire-sneezing dragon”, sold in very small numbers (only 120 or so copies being purchased from Amazon or on the Claimant’s website), mainly in primary schools in the North West of England where there was no evidence that anyone involved in the creation of the 2019 John Lewis advert or Excitable Edgar lived.

Third, DBB put forward credible evidence of independent creation. Excitable Edgar was himself a work of “intellectual creation” who was “identifiable with sufficient precision and objectivity” and not the result of any copying. Any similarities were purely coincidental.

Fourth, the preparatory steps for the John Lewis advert began in 2016 whereas Fred, the fire‑sneezing dragon, was published in 2017. Therefore, even though the final creative was not used until Christmas 2019, the judge was satisfied that DBB did not have access to Ms Evans’ work.

Conclusion – smoke without fire

Since the beginning the story telling, dragons have breathed fire with all manner of consequences but in a copyright claim this does not amount to evidence of copying. Therefore, while it might be gut wrenching to see another work that appears very similar to your own copyright work, do not be tempted to make accusations of copyright infringement unless you are able to prove that the defendant had access to the original work. The lessons that can be taken from this case are universal and all too common and simply show that independent creation can lead to similar results; smoke but without the fire.