PROVING THINGS 251: PROVING THAT YOU STOLE MY DRAGON IS NOT AN EASY TASK: FIRE BREATHING MONSTERS ARE A VERY OLD CONCEPT INDEED

April 3, 2023 · by · in Civil evidence

In Evans v John Lewis Plc & Anor [2023] EWHC 766 (IPECP HHJ Melissa Clarke (sitting as a High Court Judge) had to compare and contrast two fictional dragons.  The claimant failed to establish that the defendants’ dragon was so similar to hers that there was a breach of copyright. The claimant also failed to establish actual or inadvertent copying.

“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. In the earliest tellings, the dragon was malevolent, destructive or fear-inspiring, and often all three.  In the Old Testament, a dragon is used as a cypher for Satan himself and is described in terms including:

“His sneezes flash forth light, and his eyes are 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.”

 (Job 41:15, 18-21, King James 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.”

THE CASE

The claimant was the author of several books, one called “Fred the Fire-sneezing” Dragon. She claimed that the defendants had infringed  copyright of Fred in a character called “Excitable Edgar” used in a television advert.

PROVING BREACH: YOUR DRAGON LOOKS LIKE MY DRAGON

The judge found that the similarities between the dragons were not sufficient. In any event development of the defendants’ dragon had started before the claimant’s book was published.  Further there was no evidence that anyone on the defendants’ team had seen the claimant’s book or relied on.

 

There were a number of similarities that the claimant complained of.

I am not satisfied that there is a sufficient similarity in the size chosen for the TV Dragon and Edgar such as to raise a presumption of copying.

SIZE

Both dragons were child sized.  The judge held that

I am not satisfied that there is a sufficient similarity in the size chosen for the TV Dragon and Edgar such as to raise a presumption of copying.
GREEN
    1. Is the mere choice of the colour green for the dragon an element of the intellectual creation of the author and/or illustrator? Well, it is one choice, but we know from nature that there are millions of different shades and textures of green. We also know that green is probably the most common choice of colour for a dragon. It is also a choice that was made in the 2016 Outline, where one image shows a green dragon in the forest.
  1. As it is not pleaded, I am not satisfied that “green”, without more, is an element of Fred’s appearance amounting to the expression of the Claimant’s or Ms Williams’ own intellectual creation such that it has at material times been protected by copyright. Even if I am wrong about that, the fact that it was used as a colour for a dragon in the 2016 Outline means I am not satisfied that it was used for the TV Dragon and Edgar as a result of copying.

 

SPIKES AND ARMS

    1. I accept that Fred, the TV Dragon and Edgar all have ribbed fronts, triangular spikes down the full length of their back and tails and are possessed of two arms, but (i) the young dragon in the 2016 Outline has spikes down the full length of his back and tail, as well as two arms; and (ii) a ribbed stomach, two arms and triangular spikes are entirely commonplace features, almost ubiquitous in depictions of dragons, as can be seen by the numerous illustrated dragons in the picture books contained in the Research Schedule and in Untold’s document exploring the potential appearance of the lonely dragon which I have described in some detail. 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. Fred’s ribbed stomach which changes colour as his sneeze builds up, for example, is nowhere seen in the TV Dragon or Edgar.
  1. I accept that these features together can amount to elements of the expression of the Claimant’s or Ms Williams’s own intellectual creation (as the case may be) such that they have at material times been protected by copyright, but in relation to those elements which are found in the 2016 Outline, they cannot result from copying. In relation to the ribbed stomach and the triangular spikes, those similarities are not so similar that they are sufficient to raise a presumption of  copying, in my judgment.

NO EVIDENCE THAT THERE WAS COPYING OF THE CLAIMANT’S BOOK

The book had a small circulation.  There was no evidence anyone on the defendants’ creative team had seen it. The claimant invited the judge to draw adverse inferences because one witness was not called.

    1. Accordingly, there is not a scrap of evidence of actual access to FFD by the Defendants or their teams before me, and although there is a possibility of access as FFD was available on Amazon and the Claimant’s website, that any such access was actually obtained appears to be so remote as to be almost entirely theoretical.
    1. The Claimant submits that Mr Lloyd, the creative responsible for the team which produced the 2016 Outline, and also responsible for the development of the 2016 Outline in 2019, may have known of FFD, and that by not calling him as a witness the Defendants have prevented them from exploring this with him.  They submit that per Wisniewski v Central Manchester Health Authority [1988] PIQR 324, Mr Lloyd might be expected to have material evidence to give on this issue, as he was responsible for the 2016 Outline and its development into the 2019 concept pitched to JLP as ‘lonely dragon’, and this entitles me to draw inferences which goes to the strength of the evidence adduced on that issue by the Defendants.
  1. Mr Brim has given clear evidence that nobody working on the project ever mentioned the Claimant, Fred or FFD to him and that must include Mr Lloyd. He is certain that none of his creative team, including Mr Lloyd, would have looked at third party materials let alone copied them. If Mr Lloyd did access FFD and did copy it, therefore, I am satisfied he must have done so clandestinely. Such an inference as I am asked to draw would be hugely damaging to someone, such as Mr Lloyd, who makes his living as a creative and I am satisfied that it should only be drawn if there are cogent reasons to do so derived from all the circumstances of the case.
  1. Mr Brim has explained why he thought he was better placed to provide evidence to this Court than Mr Lloyd, who no longer works for adam&eveDBB. He said that Mr Lloyd was responsible for the 2016 Outline which pre-dated the book, and for amending and developing the script for the lonely dragon concept in 2019, but Mr Brim was involved in both the development of the 2016 Outline and the 2019 changes (as I have already set out), and was ultimately responsible for all the creative work that happened in 2019, so he thought the Court would benefit from hearing from him. I accept that explanation as honestly given, and it satisfies the Court. I decline to draw the adverse inference that the Claimant seeks from Mr Lloyd’s absence, and I further decline to infer that if Mr Lloyd had been called, it is more likely than not that he would have materially strengthened the Claimant’s case on access. I think that amounts to nothing more than wishful thinking on the part of the Claimant.

 

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