Case No. IP-2021-000111

to FFD by the parties and creative teams79.Ms Kicul’s evidence is that she did not know of, see or hear about FFD until the Claimant made allegations that the 2019 Advert copied her book on social media in November 2019. She says she asked all of the small number of JLP employees who worked on the 2019 Advert and Excitable Edgar (listed in her witness statement) if they had seen FFD before the 2019 Advert was released and they confirmed they did not. She made the same enquiry of Nosy Crow who gave a similar confirmation.80.In oral evidence Ms Kicul said that the legal team at JLP had undertaken research into books containing stories about dragons, and cleared them all, but was unable to give details about how that research was undertaken. There is no evidence or disclosure on the point and so there is no documentary evidence as to exactly which books were looked at by JLP (as opposed to adam&eveDBB who recorded their process in the Research Schedule) and what was found in the search. However, given her evidence that she made specific enquiries and neither she nor any of the JLP team members involved in the 2019 Advert and Excitable Edgar had heard of FFD before November 2019, if the JLP legal department did turn up FFD in a review they do not appear to have raised any concerns about it with Ms Kicul or her team. I am satisfied that on the JLP side, none of the team had previous access to FFD and cannot have copied it.81.Mr Brim and Mr Billingsley also state that they had not seen and did not know of FFD until after the Claimant’s initial complaints. Mr Brim said that he did not think there was any truth in her complaints “since I knew our idea had been created independently, at least in one form before her book had been published, and at no point in the creative process had anyone within our agency suggested to me or as far as I know anyone else that they were aware of this book”.82.Ms Kicul says that JLP is sensitive to claims that the Christmas Adverts are based on published books, as they have had similar allegations made in the past, so she asked Mr Billingsley during the course of development to ensure there was “clear water” between the 2019 Advert and any other stories featuring dragons or dragon illustrations. She says that he told her in around July 2019 that adam&eveDBB would do a search to ensure there was nothing that someone might say JLP had copied. 83.adam&eveDBB have disclosed a 45-page Research Schedule of about 90 children’s books involving dragons that they reviewed and cleared. Some of the entries have a red star beside them, which Mr Billingsley explains indicates that adam&eveDBB actually bought the book, to double-check that they had not inadvertently created something that was similar. This document is titled “Dave – PALS Research”, and Mr Billingsley refers to it as a research document compiled as part of the due diligence process that his account managers typically embarked upon once they knew that a certain creative idea was a front-runner.84.One item on the Research Schedule is FFD, but Mr Billingsley says FFD was added after they had heard about the Claimant’s complaint, which he suspects was the first time that anyone was aware of the existence of it. This is supported by the document itself. It was created as a Google Slides document which discloses the history of its creation and amendment. This shows that the document was created on 22 July 2019, most of the books listed were added to it on or before 1 August 2019, and the very last entry was that relating to FFD, which was only added between 14 and 18 November 2019. There is no red star against FFD, and Mr Billingsley believes this indicates that the agency did not buy a copy of FFD at this time, but it did later, after the Claimant sent a legal letter to JLP in 2020.85.The Claimant accepts what the Google Slides history shows about the document’s version history and does not suggest that the reference to FFD was added to the Research Schedule earlier than indicated. She submits that she has no evidence about when and how a copy of FFD was purchased by adam&eveDBB, and neither Mr Billingsley nor Mr Brim could assist with that in cross-examination, but I think this ignores Mr Billingsley’s written evidence about the absence of the red star on the Research Schedule. I am satisfied on the balance of probabilities that adam&eveDBB did not buy FFD until sometime after FFD was added to that document in mid-November 2019, as Mr Billingsley suggests.86.Mr Billingsley says that the Research Document was created by the account management team and never used by or even shown to the creative team, so far as he was aware. Mr Brim confirms that he does not recollect ever seeing the Research Document before the litigation process commenced, and that it was not part of the creative process of the 2019 Advert, saying “Trawling through children’s books was simply not part of the process of creating the Christmas Advert or any creative work. I do not believe that anyone involved looked at any dragon-themed children’s books for creative inspiration, and certainly none were mentioned to me as part of creating the outline or in any way in relation to the [2019] Advert… I can categorically confirm that it is an original creative work that was the result of hard work and creativity of myself, my colleagues at adam&eveDBB, Dougal [Wilson], Untold and JLP”.DETERMINATION OF ISSUES87.The first issue is whether the similarities between FFD and the 2019 Advert and Excitable Edgar listed in Schedules A and B and paragraph 20 to the Particulars of Claim show that the Defendants have copied elements of the intellectual creation of the Claimant or Ms Williams, as the case may be. Pleaded elements of Fred’s character and appearance (Schedule A of the PoC)88.A number of the Claimant’s pleaded similarities in respect of features of Fred to those of the TV Dragon and Edgar are found in the 2016 Outline and so I am satisfied they cannot have been copied from FFD. Those include that the dragons are young, accidentally breathe/emit fire, stand and move on two hind legs with forelegs used as arms, have a cute and loveable appearance, but can appear sad and forlorn following episodes of fiery destruction. In relation to the hind legs point, as the Defendant notes, in fact the TV Dragon is the only one of the three Dragons who is shown running on occasion on all four legs like a dog, so there is a difference to Fred in that similarity. 89.Ms Watkinson submits that the 2019 Advert and Excitable Edgar nevertheless reproduce other features of Fred which amount to elements of the expression of the intellectual creation contained in FFD, namely:i)The fact the dragon is of child-size;ii)The dragon is of a green colour, has a ribbed front, a series of triangular spikes on his head and back, two arms, some of the facial features and has the general body shape of the dragon in the claimant’s book. Child-size90.I accept that Fred, the TV Dragon and Edgar are all child-sized. The Defendant submits that this is because they are all required to be child-friendly and non-threatening in appearance, but this is a specific choice which in the case of Fred, I am satisfied is an element of either the Claimant’s or Ms Williams’ intellectual creation of the characters (I do not know whose choice it was). It was not necessary to make the dragon child-sized; there are plenty of examples of large yet child-friendly and non-threatening dragons in children’s literature.91.It is difficult to judge Fred’s size relative to the children around him, as he so often appears in the foreground of the illustration with children further in the background, looking much smaller because of the effect of perspective. It is only when Fred is illustrated standing next to the school cook, who I presume is an average-sized adult woman, that it can be seen he comes up to about her shoulder, making Fred perhaps the size of a child of 10 – 13 years old. Both the TV Dragon and Edgar appear to be much smaller. They are both often depicted walking next to the girl who is their best friend. In both formats she is young – about 10 – and the dragons are around half to two thirds her height, seemingly the height of about a 4 or 5 year old child. That seems to me to be quite a different choice to that made by the Claimant. 92.Green93.In respect of the second submission, this further generalises the more specific similarities which the Claimant pleaded as particular elements of intellectual creation in Schedule A. 94.For example, the Claimant did not plead that all three dragons were green: she pleaded that they had similarities in their “general body colour/texture”, and described Fred as “Green with darker green spots and some scales”, the TV Dragon as “Shades of green with a stippled rough surface” and Edgar as “Dark green with small light green spots (otherwise smooth)”. All of the other choices the Claimant made and pleaded as elements of the intellectual creation of Fred - the differentiated green colour in the form of spots and the darker green colour of those spots, the texture provided by some scales – are not seen in the TV Dragon. Edgar does have some spots, but so does the young dragon depicted in the 2016 Outline. 95.To reduce the pleaded element merely to “green” really goes to Mr Hicks’ point made from IPC Media that if you take out all the dissimilarities all that is left is what is similar. 96.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. 97.As it is not pleaded, I am not satisfied that “green”,Ribbed front, triangular spikes, two arms98.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.99.Facial features100.“Some of the facial features” is again at a very high level of generality, and is not pleaded in those general terms. Specific facial features of Fred are pleaded in Schedule A as elements of the author’s and illustrator’s intellectual creation: it is not clear which, if any, the Claimant says survive the 2016 Outline. I am left to guess. The eyes? The TV Dragon and Edgar have large expressive eyes and black pupils, but so does the young dragon in the 2016 Outline. The only similarity around the eyes which is not seen in the 2016 Outline is that each of Fred, the TV Dragon and Edgar have eyebrows. The nostrils? All three dragons have prominent nostrils (albeit I consider they are of quite a different type in Fred), but so does the young dragon in the 2016 Outline. The mouth? The Claimant pleads that sometimes Fred’s mouth appears wide, but this is clutching at straws, in my judgment. Both Edgar and the TV Dragon have very wide mouths at all times, and Fred’s mouth at rest is smaller and rounded and set back below a long muzzle.101.General body shape of the dragon102.This is not a pleaded element in Schedule A. In any event, the body shapes of Fred on the one hand and the TV Dragon and Edgar on the other are in my judgment quite different. Fred appears taller, longer and leaner. The TV Dragon and Edgar are much dumpier but more muscular and dog-like. The TV Dragon in particular is quite compressed, with his stomach almost sitting on the ground as he stands and walks on his rear legs. As I have noted, that arose from a comment of Dougal Wilson to Untold during character development. As I have also noted, the TV Dragon also runs on all fours at times. As it is not pleaded as an element of the expression of the Claimant’s or Ms Williams’ intellectual creation, I do not take this submission further. If it had been pleaded, for the reasons I have given I would not find sufficient similarity to raise a presumption of copying.103.I also stand back and look at the similarities that I have found in the character and appearance of Fred which are not found in the earlier 2016 Outline, and check whether, when viewed together, they are sufficiently similar to raise a presumption of copying. At the highest, those are the child-like size, the ribbed stomach, triangular spikes and eyebrows. I am satisfied they are not. Narrative elements of FFD (Schedule B of the PoC)104.The narrative features of FFD that Ms Watkinson in closing submits are not found in the 2016 Outline and are to be found in the 2019 Advert and Excitable Edgar are that in each case:i)the dragon does not fly unlike many dragons, and unlike the dragon in the 2016 Outline;ii)the dragon is the only dragon in the narrative unlike in the 2016 Outline;iii)all of the dragon’s friends and acquaintances are human, unlike in the 2016 Outline;iv)the dragon, despite irritating and annoying the people around him, is permitted to participate in communal life;v)the dragon earns applause at the end of the narrative and becomes the hero of the story.105.I disagree with the premise of the submissions in respect of (iv) and (v). I am satisfied that the young dragon in the 2016 Outline, despite irritating and annoying those around him, is permitted to participate in communal life, as can be seen by his good deeds lighting the town lamps and assisting a woman with clearing her path from snow. Similarly, when he does clean her path from snow, she is delighted and he can be said to have earned her applause, and it seems to me that he is undoubtedly the hero of his story as he learns to use his fire for useful rather than destructive purposes and to benefit his community and those who live in it. Accordingly those similarities, arising as they do before the publication of FFD cannot, in my judgment, arise from copying. 106.107.108.This is also a choice that appears to have been made by the Defendants between the 2016 Outline, set in dragon-world, and the pitch for the 2019 Advert, which placed the dragon as the only dragon in a community of humans. This was followed through into Excitable Edgar. As such, I accept those are similarities with FFD. 109.Whether it is sufficient, together with the few other similarities I have found relating to the features and character of Fred, to raise a presumption of copying rather than coincidence is another matter. In my judgment it is not, because the Claimant has not satisfied me that access by the Defendants has been evidenced or can be properly inferred.Access110.In my judgment the Claimant’s case on access by the Defendants is so weak that that it seems to me to be extremely unlikely that anyone involved in the 2019 Advert or Excitable Edgar had access to FFD before launch at all. There is no direct evidence that they have, so the question is whether I can properly draw an inference that it was both seen and copied, as the Claimant asks me to do. 111.I do not consider that I am able to do so. This is not a case where the work said to be copied is so ubiquitous or well-known that it is more likely than not that it has been accessed, or the similarities are so numerous and such a large part has been taken, that coincidence is a less likely explanation than copying, or that there is something common to the allegedly infringing work and the work said to be copied which can only be explained by copying (such as a printing error or other mistake, for example). In my judgment, the circumstances of this case do not lead me to infer access, as:i)the similarities between FFD on the one hand and the 2019 Advert/Excitable Edgar are few in number and can easily be explained by coincidence rather than copying, as I have set out;ii)FFD has sold in very small numbers, mainly in primary schools in the North West where there is no evidence that anyone involved in the creation of the 2019 Advert or Excitable Edgar lives, with only 120 or so copies being purchased from Amazon or on the Claimant’s website;iii)I accept that the fact that an employee of adam&eveDBB found FFD, reviewed it and added it to the Research Schedule in November 2019 after the complaint was made shows that it was available to be found, but as Mr Hicks submits, that was only once the name of the book and the author was known. It was not found in adam&eveDBB’s main due diligence trawl which resulted in the Research Document, although over 80 other children’s books about dragons were found;iv)I have rejected the Claimant’s suggestion that adam&eveDBB may have known about FFD before it was added to the Research Schedule;v)It is not marked with a red star indicating that a copy of the book was purchased at the time it was added onto the Research Schedule, and I have found a copy was purchased by adam&eveDBB later;vi)The evidence of all three witnesses for the Defendants, who the Claimant accept as honest and truthful, is that neither FFD nor the Claimant was ever mentioned during the course of the development from the 2016 Outline; andvii)The Defendants carried out searches of their systems for any references to the Claimant or FFD by way of keywords agreed by the Claimant which resulted in nothing at all being found.112.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. 113.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. 114.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.115.I have heard, accepted and set out in detail the type of collaborative, creative, iterative approach that Mr Brim says went into the development of the 2016 Outline and later development into the ‘lonely dragon’ concept in 2019. 116.As Mr Hicks submits, the Claimant has not suggested any reason why Mr Lloyd, if he had seen FFD, would have hidden that from the other creatives he worked with, and clandestinely copied only a few small elements from it, somehow driving it through this collaborative, iterative process without raising any suspicions of any of the others in the team, when he could just as easily have arrived at those few small elements independently. Mr Lloyd was a creative person at the top of his game, in one of the most respected advertising agencies in Europe, working on pitches for his agency’s flagship client. To put it bluntly, and I am sorry to have to do so, Fred just is not that interesting or innovative a character for me to accept as a real possibility that he would abandon his ethical standards in that way and put himself, his agency and JLP at risk.117.Nor is there any explanation about how or why Mr Lloyd would have influenced Untold, with their hundreds of hours of painstaking creative work on the creation of the character and appearance of the TV Dragon (which I have reviewed with admiration for the quality, artistry and thoughtful creativity that it represents) merely to include a few small elements copied from the appearance and character of Fred. It is entirely implausible, in my judgment.118.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.119.For all those reasons, I reject the Claimant’s submission that the similarities between the work and the possibility of access mean that the presumption of copying has been raised, such that it is for the Defendants to prove independent creation of the 2019 Advert and Excitable Edgar. I am satisfied on the balance of probabilities that there was no access to FFD by any of the creatives involved in the development of the 2019 Advert and Excitable Edgar, and so there can have been no copying.120.For those reasons I dismiss the Claim.