Children’s author Evans loses copyright case against John Lewis

Children’s author Fay Evans, who sued John Lewis for copyright infringement over its 2019 Christmas advert, has lost her case. 

The Guardian reported that Evans self-published her book, Fred the Fire-Sneezing Dragon, in 2017. She alleged “striking similarities” between the book and John Lewis’ 2019 Christmas advert, which featured a character called Excitable Edgar. 

In the book, Fred’s sneezes “keep causing chaos at school” until he befriends humans by cooking their food with his flames. Meanwhile, in the John Lewis advert, Edgar becomes an outcast after accidentally melting the town’s ice rinks and snowmen, before winning back their affections by lighting their Christmas pudding. 

In a judgment on Monday (3rd April), Judge Melissa Clarke 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.”

Fewer than 1,000 copies of Fred the Fire-Sneezing Dragon had been sold by 2019 and Judge Clarke stated that was “not a scrap of evidence” to suggest that John Lewis or its creative team had accessed the book. She added in her judgment: “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.” 

The concept for the advert was said to have been first pitched by advertising agency adam&eveDDB in 2016, a year before Fred the Fire-Sneezing Dragon was published. 

In a counterclaim, John Lewis and the agency asked the High Court to declare they had not infringed Ms Evans’ copyright. Judge Clarke allowed the claim, stating that the retailer should “exit this litigation without the slightest hint or shadow of a stain on their creative integrity".

Evans has been ordered to publish the judgment on her website, because, Judge Clarke said, “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. 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.”

Evans said of the ruling: “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.”

A spokesperson for John Lewis commented: “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.”