John Lewis did NOT steal idea for its dragon Christmas ad, court rules
John Lewis wins court fight against children’s author, 49, as judge throws out claim that retailer pinched her idea about lonely fire-sneezing dragon for its ‘Excitable Edgar’ Christmas ad campaign
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A children’s book author who claimed John Lewis stole her idea about an excitable fire-breathing dragon for its Christmas ad campaign has had her copyright case thrown out.
Fay Evans, 49, brought legal action against the department store company and advertising agency adam&eveDDB over the 2019 advert and its spin-off illustrated children’s book, Excitable Edgar.
In the advert, Edgar the dragon’s excitement about festivities in his village sees him accidentally melt an ice rink, reduce a snowman to a puddle and set fire to a Christmas tree.
Ms Evans alleged John Lewis or the agency had copied parts of her book Fred The Fire-Sneezing Dragon, published in September 2017, infringing her copyright.
The High Court in London heard that in Ms Evans’ book, Fred accidentally emits fire when he sneezes, leading to him accidentally melt ice-cream cones in his school’s tuck shop, burn books and set trees on fire while on a run.
Fay Evans (pictured outside the High Court in January) alleged John Lewis or the agency had copied parts of her book Fred The Fire-Sneezing Dragon, published in September 2017, infringing her copyright
Ms Evans claimed the 2019 Christmas campaign advert (pictured) bears a ‘striking similarity’ to her book about a fire-breathing dragon
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At a hearing in January, John Lewis and the ad agency disputed the claim, arguing there were ‘numerous and substantial differences’ between Ms Evans’ book and the advert, and that no one involved in the making of the advert or spin-off book was aware of Fred The Fire-Sneezing Dragon.
The two companies also said that the advert was based on a concept designed in 2016, which was pitched to John Lewis in 2016, 2017 and 2018 before being chosen in 2019.
In a judgment on Monday, Judge Melissa Clarke dismissed Ms Evans’ claim.
She said: ‘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.’
Judge Clarke ruled that the people involved in making the Christmas advert or the spin-off book had not seen Ms Evans’ book and therefore could not have copied it.
The court heard that up to October 31 2019 only 914 copies of Fred The Fire-Sneezing Dragon had been sold, with more than 700 of those coming out of primary school visits.
Fay Evans, 49, from Macclesfield, Cheshire, released the self-published picture book Fred the Fire-Sneezing Dragon in September 2017
John Lewis previously it would ‘robustly’ defend itself against the claims, saying the concept for their advert was presented to them in early 2016 – a year and seven months before Ms Evans published her book
She added: ‘I am satisfied on the balance of probabilities that there was no access to Fred The Fire-Sneezing Dragon by any of the creatives involved in the development of the 2019 advert and Excitable Edgar, and so there can have been no copying.’
The court heard that all of the dragons in the case have ribbed fronts, spikes down their backs and two arms.
However, the judge sitting at the High Court said that these are ‘entirely commonplace features, almost ubiquitous in depictions of dragons’.
She continued: ‘They have been treated quite differently in the TV dragon and Edgar compared to Fred, in terms of both the detail of those features, and their colour and general appearance.’
Judge Clarke commented that there references to dragons that breathe fire in the 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,’ she added.
The judge concluded: ‘The similarities between Fred The Fire-Sneezing Dragon on the one hand and the 2019 advert/Excitable Edgar are few in number and can easily be explained by coincidence rather than copying.’
Following the ruling, Ms Evans (pictured) said: ‘From today I’m looking forward to writing more original stories for children and developing Fred The Musical, ready for its premiere in July 2023 at the Liverpool Theatre Festival.’
The John Lewis advert, produced in partnership with sister company Waitrose, follows Edgar as his excitement about festivities in his village sees him accidentally melt the ice-rink, reduce a snowman to a puddle and set fire to a Christmas tree
Following the ruling, Ms Evans said: ‘From today I’m looking forward to writing more original stories for children and developing Fred The Musical, ready for its premiere in July 2023 at the Liverpool Theatre Festival.’
In a counterclaim, lawyers for John Lewis and the advertising agency had asked the High Court to declare they had not infringed Ms Evans’ copyright.
Allowing the counterclaim, Judge Clarke said: ‘I consider that it would suit the useful purpose of making clear to the public and the industries in which the defendants and their creative partners work that the allegations of copyright infringement impugning the integrity of their creativity have been rejected by this court.’
‘I consider they exit this litigation without the slightest hint or shadow of a stain on their creative integrity,’ she added.
The judge also made an order requiring Ms Evans to publicise the judgment, finding that she had used the annual launch of the John Lewis Christmas advert ‘as a hook to gain more publicity to raise her profile as an author and drive book sales’.
A spokesman for John Lewis and adam&eveDDB said: ‘We take great pride and care in our Christmas advert and are glad that the judge recognised the originality of Excitable Edgar.
‘We are pleased that the matter is now resolved after the court found there was no copyright infringement.’
In full: Judge’s verdict on why John Lewis did NOT steal its idea of a clumsy fire-breathing dragon for its Christmas ad campaign
Judge Melissa Clarke today ruled that John Lewis did not steal its idea of a fire-breathing dragon for its 2019 Christmas advert from children’s author Fay Evans – who published Fred the Fire Sneezing Dragon in 2017.
Judge Clarke said: ‘Fred the Fire Sneezing Dragon (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 accidentally emits fire when he sneezes, with unfortunate and accidental results, such as the burning of 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 be 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 young dragon in the 2019 advert is also living in the human world…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 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 dragon is a creature of myth dating back to ancient times and found in cultures across the world.
‘In the Old Testament, a dragon is used as a cypher for Satan himself and is described in terms including: ‘His sneezes flash for the light and his eyes are lit 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.’
‘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 similarities between FFD on the one hand and the 2019 advert/Excitable Edgar are few in number and can easily be explained by coincidence rather than copying.
‘FFD has sold in very small numbers, mainly in primary schools in the north west, where there is no evidence that anyone involved in the creation of the 2019 advert or Excitable Edgar lives, with only 120 or so copies being purchased from Amazon or on the claimant’s website.
‘There is not a scrap of actual evidence of access to FFD by the defendants or their teams before me.
‘I am satisfied on the balance of probabilities that there was no access to FFD by any of the creatives involved in the development of the 2019 advert and Excitable Edgar, and so there can have been no copying.
‘For those reasons, I dismiss the claim,’ she concluded.
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