Christmas advertising: avoiding an unwanted gift of litigation

The Christmas advertising season is upon us with numerous campaigns recently launched across our television screens and social media. Alongside big budget campaigns, such as the now traditional John Lewis offering, there is also a thriving sub-genre of Christmas ‘parody’ adverts. This advertising genre is popular with so-called ‘value’ brands and typically involves poking fun at famous Christmas movies or books. Occasionally, these parody adverts take aim directly at their more up-market rivals.

Both genres raise potential copyright infringement issues. High budget Christmas adverts, which often involve character-based storytelling, may become targets for allegations of copyright infringement from publishers of earlier copyright works. Parody style adverts are an inherently risky genre from a copyright law perspective, given their reliance on imitation to generate their humour. Watching the staggered release of these adverts can at times feel like opening an advent calendar of copyright law problems.

Big budget adverts

The recent case of Faye Evans v John Lewis Plc [2023] EWHC 766 (IPEC) highlights the types of copyright infringement risk faced by big budget, miniature epic style Christmas advertising campaigns.  The Claimant was a self-published children’s author who brought copyright infringement proceedings in the Intellectual Property Enterprise Court (“IPEC”) against John Lewis Plc over its 2019 Christmas advertisement featuring ‘Edgar the dragon’ (the “John Lewis advertisement”). The Claimant claimed that the character of Edgar bore a ‘striking similarity’ to the dragon in her children’s book, “Fred the Fire-Sneezing Dragon” (“FFD”), both in terms of character and appearance, and that various ‘narrative features’ from the John Lewis advertisement were copied from her book including the basic storyline of a misunderstood dragon who eventually triumphs by putting his fire-breathing abilities to work for the benefit of the local community.

Judge Melissa Clarke found ‘not a scrap’ of evidence of direct copying and concluded that the similarities between the John Lewis advert and the Claimant’s work were not sufficiently strong to create an inference of copying. She held that, on the balance of probabilities, no one involved with the creative process of creating Edgar had had access to the Claimant’s work. She concluded that without access there could not have been copying and the claim therefore failed. 

Documenting the creative process

Crucial to its defence was the evidence put forward by John Lewis that the external creative advertising agency which it had commissioned to make the advertisement, DBB UK Ltd (“adam&eveDBB”), had kept detailed records of its creative processes. John Lewis established in court that adam&eveDBB had conceived of the basic idea for an advert starring Edgar prior to publication of the Claimant’s book. John Lewis further explained that, as part of its due diligence process, adam&eveDBB had reviewed and cleared around ninety children’s books involving dragons. John Lewis also instructed the agency to ensure “clear water” existed between its advert and any published books.  

The adoption of these practices was a significant factor in dissuading the judge from making any inference of copying in the circumstances of the case. The decision demonstrates the value of such practices in limiting exposure to copyright infringement claims.   

Publicity orders

The above case also highlights the risks for big budget advertisements of becoming targets for copyright infringement claims. The Claimant conducted a publicity campaign regarding her lawsuit against John Lewis. In the circumstances the judge took the unusual step of imposing a ‘publicity order’ requiring the Claimant to publicise the court’s judgement on her own website describing it as the quid pro quo for her actions. Publicity orders therefore offer are a useful tool to defendants in such cases to deter such conduct by claimants.

Christmas advertisement parodies

The advertising genre known as ‘Christmas parody advertising’ (think the adventures of Aldi’s Kevin the Carrot, or Lidl’s ‘Lidl bit funny’ parody of the 2018 John Lewis Christmas advert in which a young Elton John received his first piano) has proven increasingly popular with ‘value’ brands in recent years. Amid the sentimental snowfall of lavish advertising campaigns, these brands opt for humour to engage with their audiences. This genre often relies on imitating or alluding to well-known third-party copyright works to generate its humour. Copyright law issues therefore arise which require careful consideration.

Copyright in a literary character

The recent case of Shazam v. Only Fools Dining Experience [2022] EWHC 1379 (IPEC) (“Shazam”) established for the first time that copyright may subsist in a character from a literary work on a free-standing basis. The judge held that the character of Del Boy from the television show ‘Only Fools & Horses’ (“OFAH”) was “…a fully rounded character with complex motivations and a full back story” and that in the circumstances he was an “original creation” of the show’s author John Sullivan. The judge concluded that “copyright subsists in Del Boy as a literary work under English law.”

Copyright in narrative features

It is also now well-established that copyright may subsist in the narrative features of a literary work. For example, in Baigent v Random House (Da Vinci Code) [2007] EWCA Civ 247. Lord Justice Mummery held: “Original expression includes not only the language in which the work is composed but also the original selection, arrangement and compilation of the raw research material.” In Kogan v Martin [2019] EWCA Civ 1645, Lord Justice Floyd indicated that: “Copyright protection can extend to the plot of a literary work, even where the precise words of the work are not taken.”

In Shazam the judge held that certain ‘original features’ from the original scripts had been copied and that their unauthorised use constituted an infringement of a substantial part of the original work, e.g. use by Del Boy of mangled French was an ‘original feature’ which could be infringed even if the Defendant had created its own formulation of mangled French words to be spoken by its representation of Del Boy.

Alluding to copyright works

Many Christmas parody adverts adopt an approach of merely alluding to or evoking the spirit of another copyright work whilst avoiding any direct copying. For example, Aldi’s Kevin the Carrot ‘Home Alone’ themed advert evokes the Home Alone films whilst the theme of this year’s offering is self-evident from its title, ‘Kevin & the Christmas Factory’. Although neither advert involves acts of direct copying, the above case law indicates that Christmas parody advertising may infringe copyright in third party works even where acts of direct copying are avoided. This genre of advertising therefore still requires careful legal clearance from a copyright law perspective.

Limited defence for works of parody

In some cases there may be no doubt that a Christmas parody advert makes unauthorised use of a substantial part a third-party copyright work. For example, many parody adverts uploaded to YouTube by private individuals feature substantial clips from popular films. Well known songs are also frequently performed by individuals on YouTube with the lyrics reworked for humorous effect. In such cases, the creator of the work of ‘parody’ is likely to need to rely on the Section 30(a) of the Copyright Designs & Patents Act 1988 which provides a defence to copyright infringement claims for ‘fair dealing with a work for the purpose of caricature, parody or pastiche’ (“the Parody Copyright Exception”).

Is the advertisement a work of parody?  

A Christmas ‘parody’ advert must satisfy strict criteria to benefit from protection under this copyright exception (for television advertisements ‘parody’ is the most relevant concept rather than ‘pastiche’ or ‘caricature’). The first requirement of the Parody Copyright Exception is that the work must have been created ‘for the purpose of’ caricature, parody or pastiche’.

In Shazam the judge agreed with the observations made by Advocate General Cruz Villalón in Deckmyn v Vandersteen C-201/13 [2014] Bus L.R. 1368 that “a parody must target something” and that “it must be a weapon of some sort” and further that “mere imitation” is not parody. Applying this test, the Court held that the ‘Only Fools Dining Experience’ was not a work of parody. The judge found that the overall aim of the scripts produced by the Defendant was “to represent the characters taken from OFAH in a pitch perfect familiar fashion” and that they therefore failed to constitute works of parody.

Aldi’s Christmas adverts featuring ‘Kevin the Carrot’ left ‘home alone’ or his adventures in the ‘Christmas factory’ are likely to be disqualified from protection under the Parody Copyright Exception on the same basis. Whilst the adverts offer a humorous nod to well-known films and books, they do not satirise the original works nor any other work. The adverts therefore lack the necessary ‘target’ for their humour to qualify as works of parody.

Fair dealing requirement

The Parody Copyright Exception right is also a ‘fair dealing’ right. In Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142, [2002] Ch 149, Lord Phillips MR cited with approval comments made in a leading practitioner text that what is fair dealing “is a matter of fact, degree and impression” and that if the work of parody is ‘commercially competing’ with the proprietor’s exploitation of its copyright work “the fair dealing defence will almost certainly fail”. In Shazam the Court held that defendant’s work directly competed with the exploitation of the intellectual property rights held by claimant and concluded that in such circumstances the Parody Copyright Exception could not be relied upon. An advert by one supermarket chain which parodies a competitor’s own current Christmas advertising campaign is therefore unlikely to satisfy the requirements of fair dealing.

The Birketts view

For a party promoting its own, big budget Christmas advertising campaign on television or social media, recent case law highlights the importance of keeping detailed records of its creative processes and conducting due diligence on existing copyright works based on similar characters or with similar narrative features. Keeping “clear water” between its advert and any earlier relevant copyright works identified will also further limit any exposure to copyright infringement claims.

For businesses promoting Christmas parody adverts, legal clearance from a copyright perspective should be undertaken even if no direct copying is involved. The Parody Copyright Exception may provide a further line of defence to copyright infringement claims, but it is necessary to take care to comply with its strict requirements. Other commercial risk mitigation strategies may also be employed e.g. by parodying well known works which have now fallen out of copyright.

By taking these measures, a business can seek to ensure that it starts the New Year without a litigation hangover resulting from its Christmas advertising campaign.