Case No. IP-2021-000111

53.Ms Evans in her witness statement describes her process of creating and developing the rhyming story which became the final text for FFD. This process started, she says, by early thoughts and notes in around April 2015, including initial rhyming couplets about a dragon living in a land of dragons, to a more developed draft a year later, on 16 April 2016, which set the narrative of a solitary dragon pupil within a school populated with human characters. This was followed by a further version including the introduction of a repeated chorus describing how the sneeze builds up within the dragon’s body, on 19 April 2016. After some further edits, she produced the final version which became the text for FFD on 4 May 2016 and submitted it to 16 literary agencies between 13 December 2016 and 3 February 2017. I have seen copies of those drafts, the emails out, and the emails received back from some of those agents, none of whom wished to take it on, for various different reasons. 54.Ms Evans then decided to self-publish, and worked with an organisation called Team Author UK to realise that. She sent her story to three potential illustrators, asking them to create an initial sketch of Fred so she could see their style and creative approach. In oral evidence she said that she deliberately did not provide much of a brief, to see what came back. One of these illustrators was Lisa Williams. I have seen the sketches that resulted from all three approaches. 55.Ms Evans preferred Ms Williams’ initial sketch, and they entered into correspondence, with Ms Evans providing feedback on various sketches and making suggestions. This included telling Ms Williams that although children she had read the story to at a local school thought Fred would be red, she saw Fred as being green, as she had a childhood memory of the green cartoon dragon from a 1977 film called ‘Pete’s Dragon’. Ms Evans also suggested that as the sneeze started to build up, Fred could blush red. Following further discussion, Ms Williams incorporated this in her drawings as Fred’s stomach striations turning red as the urge to sneeze grows stronger, rather like the rising mercury in a thermometer.56.Ms Williams’ evidence is that she does not use third party material when creating her illustrations, and she did not look at any other images of dragons and use them as inspiration or a base for the sketches she produced for Ms Evans. She developed them from her own artistic imagination, using the story and Ms Evans’ prompts, in order to reflect in Fred what she thought Ms Evans saw in her mind’s eye.57.Various sketches passed between Ms Evans and Ms Williams until the final illustrations, including those for the front and back cover, were completed. Those were sent to a graphic designer for typesetting on 3 July 2017. Ms Evans ordered the first print batch of 500 copies on 9 August 2017. Ms Evans’s website at the domain fayevansauthor.co.uk was also developed at the same time, and went live on 4 July 2017. By 18 August 2017 this included a facility for direct online sales of FFD. Ms Evans did two readings of the text of FFD in early 2017 (before any illustrations existed) but the first time printed copies of FFD were made available to the public was on launch on 7 September 2017.58. Ms Evans publicised FFD in public book readings, mostly at primary schools in the North West of England but also at other networking and author events, from launch to December 2018. On 15 December 2018 she published a second children’s book called ‘Bob’s Beard’ which she says was her primary focus from then and throughout 2019, although she continued to give public readings of FFD at primary school author visits. I have already set out details of the sales of FFD she achieved up to 31 October 2019, being just 914 copies, 709 of those sales arising from those primary school visits. 59.In 2018 Ms Evans wrote a sequel to FFD called “Fred the Fire-Sneezing Dragon – School Trips”, in which Fred goes on further adventures, including going on a school trip to an ice rink where his sneezing causes the ice to melt. She once again sought literary agent representation for the book from 30 April 2018 onwards, but was unsuccessful and that remained unpublished before the 2019 Advert was released.60.Ms Evans says that she saw the 2019 Advert within minutes of its release, and “within seconds I immediately recognised the remarkable visual appearance of the main dragon character, Edgar, who I thought closely resembled a CGI version of Fred. As well as being depicted as a lone dragon living in a human world, I also recognised Fred’s unique character traits, his accidental sudden emissions of fire, the melting and destruction of inanimate objects, the final warming of food and human hearts, as the storyline from my book [FFD].” It is now accepted by her that the TV Dragon’s accidental sudden emissions of fire, the melting and destruction of inanimate objects and the warming of food were all to be seen in the 2016 Outline which predates the release of FFD and so could not have come from the storyline of FFD. I otherwise accept Ms Evans’ evidence as summarised above.