Cute baby dragons and the law of copyright

3rd April 2023

There has been another amusing (at least to outsiders) copyright case.

This one is about cute baby dragons.

You do not often get – usually earnest – case reports with illustrations like this:

And it is not often that a judge gets to start off a judgment with a couple of paragraphs like these:

This is all splendid stuff – and this judgment adds to the gaiety of the world of intellectual property law, if not to the gaiety of the nation.

This judgment is well worth reading in its own right – and you can can read it here – and the purpose of my post is not to summarise the case, but to offer some commentary from the perspective of someone fascinated with both the practical law of copyright and the lore of fantastical creatures.

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On the face of it, the case was weak – and two key weaknesses stand out.

First, there was no direct evidence whatsoever of copying.

Copyright is usually about copying – the clue is in the word copy-right: it is (or should be) the law which regulates rights of copying the works of others.

In this case, any copying was to be inferred – for example by whether the defendants had access to the original work.

The judge makes short-shrift of this:

“[…] the question for the Court is whether there has been actual copying, and that requires access and not just the possibility of access. However, that access may either be evidenced directly, or it may be inferred from the possibility of access and other High Court Approved Judgment […] That inference must, of course, be properly drawn. But where there is only a possibility of access and an inference cannot properly be drawn that the alleged infringer actually did access the original work, then there cannot be a finding of copying.

The claimant was not even able to show that the work had been accessed:

“…the Claimant has not satisfied me that access by the Defendants has been evidenced or can be properly inferred.”

The second – related – weakness is that dragons are a fairly generic subject.

One claimed similarity was that both the dragons breathed fire.

Well.

That is what dragons tend to do.

Had the two works, say, had fire-breathing baby wombats…

…then that would have been a remarkable coincidence which may need explanation.

But it is perfectly possible for two creative minds to concurrently conceive of a cute baby dragon with fire-breathing difficulties.

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What does require explanation, however, is how a case as weak as this ever got to a hearing, let alone a judgment.

In civil litigation, few threatened claims ever get litigated, and few of those claims that are litigated ever get to a hearing.

This is because most civil claims are either not continued with when their weaknesses are pointed out, and those which do continue tend to get either thrown out at an early stage or settled.

Those cases – especially in the expensive High Court in London –  that end with a public judgment are rare.

And so when we get a judgment like this, one question to ask is: how on (Middle-)Earth did this case get to trial?

I am not privy to any legal materials other than the public judgment, but I think one clue may be in the successful counterclaim.

The defendants sought two remedies against the claimant.

The first was a (positive) declaration of non-infringement – which would go further than merely defeating the claim in public:

“There is no dispute that the court has the power to grant a declaration of non-infringement, taking into account justice to the Claimant, justice to the Defendants, whether it would serve a useful purpose and whether there are any special reasons why or why not the Court should grant the declaration […]. The Claimant has not suggested any special reasons why it should not be granted, and as I have made clear at the start of this judgment, I consider that it would suit the useful purpose of making clear to the public and the industries in which the Defendants and their creative partners work that the allegations of copyright infringement impugning the integrity of their creativity have been rejected by this Court, providing some justice to the Defendants without any appreciable prejudice to the Claimant.”

The second was for what is called a publicity order:

“…there is no dispute that the Court can make a publicity order against a party who unsuccessfully alleges infringement, where there is a real need to dispel commercial uncertainty […]. This is a discretionary, equitable remedy and the discretion must as always, be exercised judicially, taking into account all the relevant circumstances of the case. I accept the Defendants’ submission that any commercial uncertainty caused by the bringing of this claim for copyright infringement against them has been magnified by the publicity campaign carried out by the Claimant over the past 3.5 years, including around the trial itself. [Claimant’s counsel] submits that she was entitled to publicise her claim and I do not disagree with that. The quid pro quo is that, her claims having been rejected by the Court, the Court will require her to publicise the judgment and order made against her in order to endeavour to redress the balance.”

If this was a claim that could have been knocked-out by the defendants at a preliminary stage, or settled as a nuisance claim, but the defendants insisted instead on going to trial, then obtaining these two very public remedies may have been an understandable case strategy.

The claimant’s use of publicity was very much a two-edged dragon-slayer.

And the claimant’s solicitors were also robust in their use of publicity:

Brandsmiths were back in the IPEC this week acting for @FayEvansAuthor in her copyright claim against John Lewis. The trial has concluded – we await judgement in due course from HHJ Melissa Clarke.

Some media coverage below – https://t.co/MSDynXAS4Z#Copyright #IP #CopyrightLaw pic.twitter.com/XLHoQ4YMwW

— Brandsmiths (@Brandsmiths) February 5, 2023

The solicitors’ tweet linked to this spirited (ahem) puff piece:

 

In the end, the claimant suffered adverse comment in the judgment:

“[the claimant] 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. At first she denied it, but then accepted that they were, in part, for self-publicity. She denied deliberately releasing them to coincide with the launch of the John Lewis adverts in each year, and sought to say, in effect, that was mere coincidence, and she had chosen the timing as certain particular stages of these proceedings had been reached.”

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Presumably the claimant was advised that bringing any legal claim means that she would have to be prepared to go all the way to trial.

For although most civil claims settle, the paradox is that to obtain a worthwhile settlement you have have to be prepared to go to court if your case does not settle.

And the claimant was presumably also advised that any adverse public judgment would more than offset any gains from publicity along the way.

The claim looks just – just – about arguable – but without any evidence of access, let alone copying, and with a subject being something as generic as dragons – it was never a claim that had any strength.

And given the implicit attack on the integrity of the creatives working for John Lewis, there was always a serious risk that the defendants would just let it go to court and apply for the two remedies that they obtained.

It was a daft case to bring.

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The judgment, however, is a useful document.

For it not only provides a fable of what happens to a weak case that ventures into the dragon’s cave of the High Court, it also provides an informative and detailed account of a creative process.

It also contains a very detailed analysis of the creative process an agency goes through to bring the final advert to life.

— Nick Docker (@NickGDocker) April 3, 2023

As such it is a judgment that should be read by anyone – lawyers and non-lawyers – who is interested in the media.

And, indeed, the High Court has, helpfully, self-published its own illustrated version.

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