John Lewis prepares to defend Excitable Edgar as copyright lawsuit heads to high court

The hearings, on Monday and Tuesday (January 30-31), mark a dramatic conclusion to years of legal grappling over Excitable Edgar, a sneezing dragon whose redemption saga provided the brand with its Christmas TV campaign in 2019. The campaign was a hit for John Lewis, which even released a picture book starring the scaly hero.

Shortly after the ad was unveiled, children’s author Fay Evans alleged that the advertiser’s effort plagiarized her 2017 book Fred The Fire-Sneezing Dragon. She points out that not only do both characters vent flames from their nostrils, but both are also subject to rejection from a village of humans, only to regain their neighbors’ trust by playing a hand in cooking Christmas dinner.

For its own part, John Lewis’s spokespeople have maintained that the idea was in development well before Evans published her picture book. The brand denies taking any inspiration from Evans’ work and has stated that Adam&EveDDB first presented the idea to John Lewis back in early 2016.

A spokesperson for the retailer told The Drum today (Friday, Jan 27) that “as the trial is imminent we are unable to comment other than to say that we strongly dispute the allegations being made against us.“

Who’s likely to win the case?

Though the courts manage “lots of copyright claims,” the case is the first involving advertisers and agencies in several years, says Ben Evans, an intellectual property solicitor at Blake Morgan.

The most relevant recent case actually involves the singer Ed Sheeran, who recently won a lengthy court battle over copyright claims by two American songwriters, who claimed he had copied their work to write his 2017 song The Shape Of You.

“It looks like this case is going to turn on copying. This is copyright, so at the end of the day if there is no copying then the author in this case will not win. They need to show that John Lewis and the ad agency actually had access to that work, and that they copied it.

“In the Ed Sheeran case, they couldn’t show that. Yes, it was clear there was a similarity, but they couldn’t show it was actually copied.” Given the Sheeran precedent, Evans says, it’s likely Adam&Eve’s defense will hold up.

Why is the case going to a trial?

Though the high court might sound like a dramatic setting, it’s typical for copyright cases to be decided there, says Evans.

It is unusual for a case to get all the way to the court itself, however. “Not many IP claims go all the way to a decision. Most cases are settled, so it is fairly surprising that this one has got to this stage.”

Given the time spent waiting for the case to go to trial – typical copyright claims take one year to process, and this one has been stretched out for over three – the solicitor says it’s likely that the parties have already had settlement negotiations. “Having said that, the firm the author is using [Brandsmiths] is known to be quite litigious,” he adds.

The hearings next week will play out at the Intellectual Property Enterprise Court (IPEC), a division of the high court that deals with copyright claims involving smaller enterprises. Because of that, hearings at IPEC are limited to just three days – a factor that might play into claimant Evans’ hands.

“If it was in the high court, it could be on for a much longer period and there would be more witnesses. So there’s going to be less evidence, less witnesses and potentially, if John Lewis aren’t able to throw quite as much into it and pick as many witnesses on the stand, that could work in [Evans’] favor.”

What happens if John Lewis loses the case?

Because the case has been brought to IPEC, the size of payments covering legal costs are capped lower than they would be at the main high court.

“There are two hearings,” Evans explains. “The first bit is where they decide if there has been an infringement. If there is an infringement, the next step is either that the parties go away and sort out how much money is owed if there is anything owed, or they have to come back to court for a second hearing to work out who owes what.”

Should legal costs covering two hearings be awarded, the payout could rise to a total of £90,000, though in most cases, the solicitor adds, legal costs are settled without the need for an additional session.

The size of a potential damages payout is much larger. Though the claimant wouldn’t be liable to pay damages if she loses the case, if she wins, John Lewis and Adam&Eve could be on the hook for half a million pounds. “It’s a question of how much they might pay,” the solicitor says.

There’s also the risk of taking damage in ways that are harder to assess. As the last nationwide department store chain left standing, John Lewis just might be one of the only things that unites Britons across generational, class and political lines today.

Were middle-class Britain’s favorite retailer found on the wrong side of a David-and-Goliath battle (as The Times has characterized the case), its status as the supplier of choice for housewarming gifts, haberdashery, and high thread-count bedsheets could be under threat.