Children’s author who sued John Lewis over Christmas ad loses case

theguardian.com:

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