A self-published author who sued John Lewis over its 2019 Christmas advert about a trouble-making dragon has lost her case.
Fay Evans brought a case for copyright infringement, alleging that there was a “striking similarity” between her picture book, Fred the Fire-Sneezing Dragon, and John Lewis’s now almost four-year-old ad featuring Edgar.
In a judgment handed down on Monday, Judge Clarke ruled that the retailer’s advert, which was turned into an accompanying book by Nosy Crow called Excitable Edgar, did not infringe Evans’ copyright.
Evans’s book, which she published in 2017, is a rhyming story about a small green dragon. His fiery sneezes cause chaos, until he wins the affection of the humans in the story by cooking their food with his flames.
John Lewis’s advert followed Edgar the dragon, who melted a snowman and burned down a Christmas tree in the town where he lives. It is only when he lights the town’s Christmas pudding that a happy ending is reached.
Evans sued John Lewis and its advertising agency Adam&EveDDB. But Clarke said in the judgment 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 (ie seen, in this case) by those said to have copied it”.
Clarke said that the similarities between Fred the Fire-Sneezing Dragon and the John Lewis advert were “few in number and can easily be explained by coincidence rather than copying”.
Clarke found there was “not a scrap of evidence” that John Lewis or the team making its ad had access to Evans’s book, which had sold fewer than a 1,000 copies by October 2019, mostly to primary schools in the north-west of England; and while there was the “possibility of access”, as the book was available on Amazon and the author’s website, the chance that any such access was actually obtained “appears to be so remote as to be almost entirely theoretical”.
The idea for the Christmas ad was found to have been first dreamed up by a creative at John Lewis’s agency in 2016, before the book was published in 2017.
Clarke said that while John Lewis and Adam&EveDDB “exit this litigation without the slightest hint or shadow of a stain on their creative integrity”, she was still ordering Evans to publish the judgment on her website because she “for the last three years and more has carried on a media campaign publicising her allegations of copyright infringement”.
“Ms Evans was a little cagey, I felt, about a series of press releases in which she made allegations of copyright infringement against John Lewis, which she drafted and released to the media in November 2019, December 2020 and November 2021,” said the judgment. “She first said that she released them as she considered that it was in the public interest to do so, and then said that she gained confidence from public support.
“It was put to her that the press releases were made in order to promote the sale of her books and the financing of a proposed musical based on FFD [Fred the Fire-Sneezing Dragon]. At first she denied it, but then accepted that they were, in part, for self-publicity.”
Clarke said she was “satisfied” that Evans used John Lewis’s Christmas adverts each year “as a hook to gain more publicity to raise her profile as an author and drive book sales, rather than because there was anything particularly newsworthy about these proceedings to report at the time”.
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.”
John Lewis and Adam&EveDDB said in a joint statement: “We take great pride and care with our Christmas adverts and we’re glad the judge recognised the originality of Excitable Edgar. We’re pleased that the matter is now resolved after the court found that there was no copyright infringement.”
