Copyright litigation proceedings brought in London’s Intellectual Property Enterprise Court (IPEC) against John Lewis, and its cartoon dragon ‘Excitable Edgar’, have been dismissed.
This high-profile case is relatively straight-forward, but some interesting issues still arise.
For example, cases like this draw attention to the challenge that copyright complainants face when trying to establish copyright infringement in circumstances where they have not caught the alleged copyists red-handed. This blog explores how such potential copyright claimants can bolster their prospects when enforcing their copyrights.
For some, the release of John Lewis’ Christmas advert is an eagerly awaited event. In 2019, this advert featured an excitable young dragon who can’t help releasing fire. John Lewis’ dragon came to be known as ‘Excitable Edgar’ and was the subject of a spin-off illustrated children’s book.
Excitable Edgar also became the subject of a copyright infringement claim by Fay Evans. Ms Evans is a children’s book author who has self-published three books. One of these is a book called “Fred the Fire-sneezing Dragon”.
Ms Evans claimed that the 2019 advert and Excitable Edgar infringed the copyright in Fred the Fire-sneezing Dragon.
The claim was heard in the Intellectual Property Enterprise Court (IPEC). In short, the copyright claim failed.
In this case, a crucial piece of evidence was that central concepts for the John Lewis campaign were devised, and circulated within John Lewis, before the Fred the Fire-sneezing Dragon was published. This evidence seemed crucial to the Judge concluding that John Lewis’ advert was not an infringing copy.
How do copyright claimants persuade a Judge there has been copying?
As a prospective copyright claimant, you would first look for incontrovertible evidence of actual copying. In the internet age, an example of such evidence might be the defendants accessing your website pages which are hosting such copyright content before going onto the produce their own suspiciously similar work immediately thereafter.
If you do not have such compelling evidence of copying, that is not necessarily fatal. However, it would be even more important for a prospective claimant to establish the following:
Once a Judge concludes there are sufficient similarities between the respective works and that the defendants had access, then the burden of proof rests on the defendants to prove that the similarities were the result of independent design. Once this happens, the Claimant will be in a stronger position, particularly if the defendant’s narrative of independent design is weak.
In this case, the Judge also made some interesting comments that the fact that the Claimant’s work was merely available somewhere on the internet was not enough to persuade the Judge that there had been access. The Judge wanted better evidence that the Defendants were actually likely to have accessed the Claimant’s copyright works. In the absence of such evidence, the claim failed.
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