A judge rejected a self-published author’s claim that John Lewis’ dragon-themed Christmas-themed advert was inspired by her ‘Fred the Fire Sneezing Dragon’.
Fay Evans sued the department store chain and the advertising giant responsible for the concept, claiming the hero of the 2019 advertising campaign - ‘Excitable Edgar’ – infringed copyright as it was based on the eponymous character of her book series.
Oxford’s Judge Melissa Clarke, sitting as a High Court judge, ruled that there was no breach of copyright.
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Quoting from the Old Testament Book of Job, in which Satan is described in dragon-like terms with sneezes that ‘flash forth light’, the judge said: “The idea of dragons sneezing and breathing fire, and that such fire can be put to useful purposes such as kindling coals [is] very old indeed.”
In the end it was Ms Evans who got burnt by her attempts to sue over Excitable Edgar and fire-sneezer Fred.
In response to Ms Evans' claim, John Lewis and ad company adam&eveDBB brought their own counterclaim.
Judge Clarke ordered Ms Evans pay costs of £35,000 and publish notices on her website and Twitter page informing readers of the outcome of the case.
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The author self-published Fred the Fire-sneezing Dragon in 2017, with copies available from online retailer Amazon.
The story follows Fred, a dragon enrolled in a school otherwise populated by children, as he accidentally burns schoolbooks, torches trees, and melts an ice cream in the tuck shop.
“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,” Judge Clarke summarised.
The 2019 Christmas advert featuring Excitable Edgar had its roots in a 2016 concept prepared by one of communications company adam&eveDBB’s ‘leading creatives’ Simon Jones.
Then intended to follow a dragon community-dweller who was ‘so excited about Christmas that he cannot control the flames from his mouth’ and ‘burns everything he encounters’, the concept developed over the next three years.
The Edgar in the advertising campaign lives in a village otherwise populated by people and, similarly to school lunch saviour Fred, saves the day when he lights the Christmas pudding.
Ruling against Ms Evans, Judge Clarke acknowledged there were similarities between Edgar and Fred but that they were ‘few in number and can easily be explained by coincidence rather than copying’.
Fred the Fire Sneezing Dragon had sold in ‘very small numbers’, she added. And although the book was ‘found’ by an employee of the advertising company, it was only after Ms Evans made a complaint having seen the John Lewis ad.
Judge Clarke said: “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.”
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