Fay Evans v John Lewis PLC & Anor

Copyright infringement requires actual copying. Actual copying requires access to the copyright work, although access may be inferred from the possibility of access and the surrounding circumstances. A mere theoretical possibility is insufficient.

Copying is assessed multifactorially, including familiarity with the original, objective similarity, the likelihood of coincidence, other influences and the defendant’s evidence. Whether a substantial part has been copied is qualitative: the issue is whether protected elements expressing the author’s intellectual creation have been taken. Similarities must be assessed in their full context, since removing differences may create an illusion of copying.

The claimant, an author, alleged that a John Lewis Christmas advertisement and an associated children’s book copied protected literary and artistic elements of her book, Fred the Fire-sneezing Dragon. The defendants relied on independent creation from a 2016 concept and denied access to the claimant’s work.

The court considered whether the pleaded character, appearance and narrative elements were protected, whether they had been copied, and whether the defendants were entitled to a declaration of non-infringement and a publicity order.

1. Claim dismissed. The claimant failed to establish copyright infringement. Judgment was given for the defendants on the counterclaim.
2. Under section 16 of the Copyright, Designs and Patents Act 1988, infringement requires copying of the work or a substantial part. A substantial part is identified qualitatively by asking whether elements expressing the author’s intellectual creation have been taken. The relevant expression must be identifiable with sufficient precision and objectivity.
3. Copying required actual access to the claimant’s book, not merely the possibility of access. Access could be proved directly or inferred from the possibility of access together with other circumstances. The inference had to be properly drawn. Here, the limited sales, the few similarities, the absence of evidence that any relevant creative participant had seen the book, the independent 2016 concept and the defendants’ evidence made actual access highly improbable.
4. The court applied a multifactorial assessment of copying, including familiarity with the original, the character of the work, objective similarity, the inherent probability of coincidence, other influences and the quality of the defendant’s evidence. The similarities relied upon were either already present in the 2016 concept, commonplace, insufficiently specific, or too limited to support an inference of copying.
5. The fact that some character and narrative choices in the claimant’s work could constitute protected expression did not establish infringement. The relevant choices, including a solitary dragon in a human world, were not sufficiently similar in context, or were independently developed, to raise a presumption of copying.
6. The court declined to draw an adverse inference from the absence of a former creative employee as a witness. Any inference of clandestine copying would have been seriously damaging and required cogent reasons, which were absent.
7. A declaration of non-infringement served the useful purpose of addressing public allegations affecting the defendants’ creative integrity. A publicity order was also justified because the claimant’s sustained publicity campaign had magnified commercial uncertainty. The parties agreed the form and publication period of the notice.