Case No. IP-2021-000111

61.Ms Kicul has had a leading role in delivering the JLP Christmas campaign, including the Christmas Advert, since 2018. She says that she works on it all year round, starting in January each year with the brief that JLP sends to adam&eveDBB to inform the ideas that they then pitch to JLP. Her evidence is that in 2019 JLP changed their approach from having separate ads for John Lewis and Waitrose to a joint John Lewis/Waitrose brief for the Christmas Advert on the theme of “thoughtfulness at Christmas”. The brief asked adam&eveDBB to create a Christmas Advert that was “greater than the sum of the parts, not a compromise for either or both brands”. 62.Mr Billingsley describes how a JLP brief for a Christmas Advert, once received in the agency, would be sent out to all of the creative teams who would then submit their ideas. He said there were about 40 such teams, of one or two creatives in each, and this would result in 200-300 ideas, which would be reviewed and sifted by the creative directors, led by Mr Brim as Chief Creative Officer. Those would often include ideas put forward from previous years which the creative teams thought were still worthy of consideration, and in 2019 these included Simon Lloyd’s ‘lonely dragon’ concept from the 2016 Outline which had been pitched in 2016, 2017 and 2018. Some of this deluge of ideas would be rejected outright, some would be sent back to the creative teams for reconsideration and reworking before submission again, and eventually Mr Brim, Mr Billingsley and other senior staff at adam&eveDBB reduced the ideas down to a shortlist of concepts to pitch to JLP at a course of initial meetings. On 13 March 2019, the ‘lonely dragon’ concept was pitched to JLP, once again. 63.Mr Brim’s evidence was that he had been involved in the development of the 2016 Outline, saying in his witness statement that he discussed the concept of the ‘lonely dragon’ with Mr Lloyd and others in the creative and account management teams at various meetings in 2016. “I had once owned a dog that used to get so excited that it would urinate, and the idea was that the dragon would get excited and let out a little puff of smoke or flames in the similar way. In particular, Simon Lloyd, Christine Turner and I discussed the dragon becoming so excited about Christmas that he would let out little bits of fire from his nostrils and accidentally set fire to things. I recall that one idea we came up with was that there had been a storm and the power had gone out, and that the dragon would ultimately find use for its flames by lighting candles.”. Mr Brim explains that he thought it was a good fit for the changed joint John Lewis/Waitrose brief in 2019, because it could be slightly reworked to provide a significant emphasis on Waitrose by changing the ending from the dragon redeeming himself by lighting a candle, to lighting a beautiful Waitrose Christmas pudding as the finale to a Christmas banquet. I remind myself that the dragon lighting a Christmas pudding can be seen in the 2016 Outline, albeit not as the finale. In oral evidence Mr Brim said that although Simon Lloyd was responsible for changes from the 2016 Outline to the script pitched to JLP in 2019, he himself was ultimately responsible, as he had ultimate creative control for all ideas put forward by the creative department, working with both the creative and account management teams. 64.Mr Brim said that he discussed the ‘lonely dragon’ concept with Mr Lloyd and the creative team and “talked about all the things that are associated with Christmas (snow, snowmen, ice skating, Christmas trees, decorations etc.) and how the dragon’s fire could accidentally burn/melt them. We thought about the useful things the dragon could do with its fire, such as lighting candles for the table, and then landed on the idea of the dragon presenting and lighting a Christmas pudding at a banquet, bringing people together and leading to the dragon being accepted by the community. It had the inclusiveness message that was important for the concept, but also brought in the food element which was crucial to meet the brief given the ad was for Waitrose as well as John Lewis”.65.At the 13 March 2019 meeting, JLP chose five pitched concepts to be the subject of a further presentation on 3 May 2019, including the reworked ‘lonely dragon’ concept. This caused the production of a document setting out the core idea and including a mood board indicating the creative direction that they were proposing to use for the dragon character. The concept was given a working title of ‘PALS’. The ‘idea’ was described in that document as follows:“This is the tale of an adorable young dragon but one who suffers at this time every year. For he is simply so excited about Christmas that he cannot control the flames from his mouth. He burns everything he encounters, putting a real downer on everyone’s Christmas spirit. His friends and family don’t even want to go near him. So much so that one Christmas he leaves to make everyone around him happier. But his best friend has other ideas. On Christmas day he sees the incredible spread laid on and sees a special something needs to be lit. A delicious plump Christmas Pudding. This turns into a simple gift that helps display true acceptance and makes the little dragon realise that people really do care. Especially at Christmas.”66.The mood board has eight images of quite different looking dragons, but each looks friendly or at least not threatening. It is accompanied by a narrative describing the two pals as “A little boy and an adorable young dragon”. 67.By a final meeting on 24 May 2019, JLP had narrowed their choice to two competing concepts, of which ‘PALS’ was one and ‘Unexpected Guest’ was another. In advance of that meeting, adam&eveDBB further developed the idea and mood board of ‘PALS’ and included a script. At the meeting, JLP chose ‘PALS’ for the 2019 Christmas Advert, and agreed the final script (“the Script”). Although ‘Unexpected Guest’ was not chosen in 2019, it eventually became the 2021 Christmas Advert. 68.Following JLP’s choice, adam&eveDBB spoke to a number of potential directors and production/animation companies and sent them the Script. Each potential director produced a ‘treatment’ showing how they envisaged bringing the Script to life. I have seen three of those treatments, which are quite different in approach and in the extent to which they have developed their ideas. For example, one director set the story in modern-day suburbia, featuring locations including a tired shopping mall and a gritty urban underpass. Another produced a very extensive treatment, including offering suggested dialogue and multiple sketches of how the dragon could look. However, both Defendants agreed that Dougal Wilson’s treatment, although comparatively minimal, was the best for the campaign. He had directed three previous Christmas Adverts. He pitched alongside Untold, who was chosen for the production agency.69.I have seen a great deal of documentation and video evidence about the visual development of the TV Dragon by Untold, working with Mr Wilson and adam&eveDBB: from documentation recording very early concepts and inspiration photographs from the natural world for features and textures of the dragon’s appearance; to sketches showing possibilities for and development of the overall look of the dragon; to computer-generated visuals and video clips dealing with the dragon’s shape and stance (from the skeleton to its musculature and then fully rendered), the way it moves and its facial expressions for different feelings. 70.This documentation alone records the level of thought and creativity that went into establishing the overall look of the TV Dragon in the earliest stages, in my judgment. It is all dated (or the dates of creation can be seen from metatags), and the Defendant does not question the authenticity of any of it. A document produced by Untold immediately after an initial meeting with JLP, in which Untold showed a photograph of a baby hippopotamus which it felt could be an inspiration for a young and adorable dragon, showed something very spiky, roughly textured and brown, with a segmented tail almost like a scorpion, but bearing a hippopotamus-like face with small eyes and prominent nostrils. It bears almost no relation to the TV Dragon or Edgar. Ms Kicul said in her evidence that she found some of the early visuals to be a bit crocodilian and scary, and instead wanted a dragon that seemed cute. This appears to be an example of what she wanted to move away from.71.72.A later document, called “Developing Dave” (Dave being a working name at the time for the dragon) shows a dragon who is recognisably the TV Dragon from the 2019 Advert. It has his dumpy physique, somewhat rounded muzzle, protruding, uneven teeth, small wings, more rounded spikes all the way down his back, small arms and a striated abdomen. Mr Brim describes the dragon as having “cuteness with a degree of realism”. This document explores the dragon’s character through different expressions. A page of sketches headed “Dougal Comments” has comments from the director, showing that he asked for smaller wings, smaller, round eyes with round pupils, and a ‘slightly squashed’ torso. It comments that he does not want the dragon’s muzzle too ‘beaky’ but he does want uneven teeth and a big grin, for example.73.These preferences can be seen as being followed in the later sketches and CGI visuals and videos. The TV Dragon’s torso becomes dumpier and compressed, with a protruding rounded abdomen that sits low and almost on the ground. The eyes shrink and become rounder. His sparse, uneven teeth poking out of his mouth are a feature adding to his gawkiness and approachability. The exploration of the TV Dragon’s movement and expressions in CGI video clips alone must represent many hundreds of hours of work. 74.All of this development work was taking place with creative input from adam&eveDBB and the director, and alongside work on the storyboarding of the film from the Script, in close conjunction with the director, and the pre-production work on locations, casting, costuming etc with Blink. Filming took place abroad in September, with the CGI TV Dragon inserted in post-production.75.Both Mr Billingsley and Mr Brim describe in written and oral evidence the very collaborative and creative nature of the process which took place between Untold, the director, Blink, them and others at adam&eveDBB in pre- and post-production in bringing the initial concept and Script to the final 2019 Advert, with JLP providing feedback to the visuals and story development. Mr Brim in particular described that in part as involving multiple creatives in a room, throwing out and discussing ideas, some of which were taken up and explored and either further developed or discarded, in a very collaborative and iterative process. In cross-examination he was questioned about why no documentation of the various developments of the Script existed, and he explained firstly that the Script was never further developed itself, but was moved onto storyboards which developed the story in sketches and images, and secondly that the creatives simply did not work that way. I accept Mr Brim’s evidence, and the Defendant accepts him as an honest and straightforward witness. 76.Mr Billingsley thought that some of the meetings resulted in written notes, but if so, these notes have not been disclosed. The Claimant took issue with this in closing argument, described this as “a hole in the Defendants’ evidence of the development of the 2019… Advert” and submitted that the Defendants have provided no documentary evidence to explain how the 2016 Outline was used in the creation of the 2019 Advert, or how the idea of the 2016 Outline was developed in order to become the narrative which is in the 2019 Advert. I disagree. I have seen how the 2016 Outline progressed in 2019 to the ‘lonely dragon’ concept pitched as PALS, and heard Mr Brim’s clear evidence that the 2016 Outline was not otherwise developed in 2016, 2017 or 2018. I have heard how that ‘lonely dragon’ concept was further developed through the pitching process, and that can be traced in the various documents presented to JLP, resulting in the Script. I have seen the development from the Script to the narrative in the 2019 Advert in the process of storyboarding, and those storyboards have been copied and are included within the trial bundle. 77.Furthermore I have read and heard evidence from two people involved in the creative process at adam&eveDBB, Mr Brim and Mr Billingsley, who the Claimant accepts as honest and truthful. When I put this to Ms Watkinson she said “Well, I suppose there was no documentary evidence given before we heard the oral evidence… and in our submission there has been no sufficient explanation…[or] documentary evidence to show how these decisions were made, to show how the decisions have been taken”. She submits that when she asked the witnesses in cross-examination to explain how decisions were made or who took them, the witnesses were not able to give her an answer to that. However, I accept Mr Brim’s evidence that there was no formal documentation of who made various creative decisions because these were made collaboratively and interactively, by creative people in a room doing what creatives do, and that there was no need to attribute decisions to individuals as Mr Brim took ultimate responsibility for them all.