Fay Evans is a children’s book author who wrote “Fred the Fire-sneezing Dragon” (FFD) and self-published it in September 2017.

FFD is illustrated by Lisa Williams, a freelance illustrator, who assigned her copyright in writing to Ms Evans in 2021.

FFD is the story of Fred, a young dragon who is a pupil in a school otherwise populated by human characters. 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. 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 cooks the school lunch, gaining the approbation of the school cook and his peers. Images of Fred include:

Ms Evans issued proceedings against John Lewis Partnership (JLP) and its creative agency, DBB UK Ltd (DBB), claiming that they had infringed her copyright in FFD with the creation and broadcast of its 2019 Christmas ad, which featured a cartoon-style fire-breathing dragon created by CGI, and in relation to its accompanying children’s book, “Excitable Edgar”.

The 2019 ad featured a young dragon living in a human world who cannot help releasing fire. He is shown running excitedly to help two children build a snowman, which he reduces to a puddle, and running to join children skating on the village ice rink, which he melts. He also attends the unveiling of a Christmas tree in the village square, which he burns to the ground. He retreats sadly to his home where he stays until his best friend, a young girl, gives him a Christmas pudding as a present, which he takes to the village banquet and lights with his fire to everyone’s delight. Images of Edgar from the 2019 ad include:

Images from “Excitable Edgar” include:

JLP said that its 2019 ad was based on a concept originally conceived and outlined by DBB in 2016, i.e. before FFD was published, as set out in a four-page outline document which the metadata showed was created in February 2016. DBB presented the concept to JLP as one of various options for its Christmas ad in 2016, 2017, 2018, but JLP preferred the other options on each occasion. DBB presented it again in 2019 and JLP approved it for that year.

Ms Evans accepted that the elements of similarity in the appearance of the two dragons as contained in JLP’s 2016 outline document clearly could not have been copied. However, she maintained that there were various similarities that were not in that document. She said that these similarities amounted to elements of the expression of her intellectual creation that were sufficiently similar to JLP’s TV dragon and to Edgar such as to raise a presumption of copying, e.g. both dragons were of child-size, both dragons were green, and both had a ribbed front, a series of triangular spikes on the head and back, two arms, similar facial features and the same general body shape.

Her Honour Judge Melissa Clarke found that although some of these elements (apart from the “green” element) amounted to the expression of Ms Evans’ or Lisa Williams’ own intellectual creation such that they were at material times protected by copyright and were similar in both dragons, they were not so similar that they raised a presumption of copying, whether viewed on their own or all together.

The same was true of the narrative similarities pleaded by Ms Evans, such as the fact that in both stories the dragon is placed alone in a human world. This, whether viewed on its own or together with the few similarities found in the character and appearance of the dragons, was not enough to raise a presumption of copying rather than coincidence. Even if that were wrong, there was an issue over whether JLP or DBB had had any access to FFD such that it could have copied it.

On the question of access, HHJ Clarke said that: “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”. There was a dispute between the parties about the extent to which Ms Evans was required to prove on the balance of probabilities that there was access to FFD and whether she was merely required to prove the possibility of access to FFD.

Referring to Sheeran v Chokri [2022] EWHC 827 (Ch), HHJ Clarke found that the question was whether there had been actual copying, and that required access, not just the possibility of access. That access might be evidenced directly or inferred from the possibility of access and other circumstances in the case, she said. Inference must be properly drawn, but where there is only a possibility of access and an inference cannot properly be drawn that the alleged infringer actually did access the original work, then there cannot be a finding of copying.

There was no evidence of direct access by JLP or DBB to FFD. Therefore, the question was whether access could be inferred by the circumstances of the case.

The evidence showed that DBB had undertaken a search for dragon-themed books before the launch of the 2019 ad, to check if anything similar existed, and produced a schedule of their findings, which included various children’s books about dragons. FFD was listed in the schedule, but the metadata and witness evidence showed that it was added only after they had heard of Ms Evans’ complaint. The evidence also showed that JLP had only purchased FFD at this point.

Therefore, HHJ Clarke said, it was clear that FFD was available for purchase. However, this was not enough to infer access to it. This was not a case where the work said to be copied was so ubiquitous or well-known that it was more likely than not that it had been accessed. FFD had sold in very small numbers, mainly in primary schools in the North West and there was no evidence that anyone involved in the creation of the 2019 ad or Excitable Edgar lived there. Only around 120 copies had been purchased from Amazon or from Ms Evans’ website. It was also not a case where the similarities were so numerous and such a large part had been taken that coincidence was a less likely explanation than copying. The similarities were few and could easily be explained by coincidence rather than copying. In HHJ Clarke’s judgment, the circumstances of the case did not lead her to infer access. Further, HHJ Clarke accepted JLP’s evidence of the independent creative process it had undertaken in developing the 2019 ad and Excitable Edgar.

By way of counterclaim, JLP sought a declaration of non-infringement and a publicity order. HHJ Clarke granted both, finding that, in terms of the declaration, it would suit the useful purpose of making clear to the public and the industries in which JLP and its creative partners worked that the allegations of copyright infringement impugning the integrity of their creativity had been rejected by the court, providing some justice to JLP without any appreciable prejudice to Ms Evans. As for the publicity order, HHJ Clarke accepted JLP’s submission that any commercial uncertainty caused by the bringing of the claim had been magnified by the publicity campaign alleging copying that Ms Evans had carried out across social media from the moment she first saw the 2019 ad until and including around the trial. Accordingly, the claim for copying infringement was dismissed and the counterclaim allowed. (Fay Evans v John Lewis Plc [2023] EWHC 766 (IPEC) (3 April 2023) — to read the judgment in full, click here).