Case No. IP-2021-000111

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.