Author Christopher Riddell has claimed that this year’s John Lewis Christmas advert about Moz the monster is a plagiarised copy of his 1986 book Mr Underbed.
It is common for artistic concepts and ideas to draw on other people’s work, but a central principle of copyright law in the UK is that it protects the expression of ideas and not the ideas themselves.
Where such expressions have been copied from an earlier work, it must be shown that all or a substantial part has been taken.
This was clarified in Baigent and Leigh v The Random House Group in 2007. Therefore Mr Riddell’s assertion would be difficult to validate in court.
For an infringement argument to succeed, the copying would need to be literal and textual to some degree.
In this case, the language used in Mr Underbed is not repeated in the advert, nor does the advert include any narration which could amount to a copying of the text itself.
It would be difficult for Riddell to establish that the expression with which his ideas are conveyed have been reproduced.
Harry Potter’s copyright conundrum
The difficulty in establishing plot-based non-textual copyright was reaffirmed in Allen v Bloomsbury Publishing (2010).
Here it was claimed that Harry Potter and the Goblet of Fire by JK Rowling was a reproduction of a substantial part of Anthony Browne’s Willy the Wizard.
The court reached the conclusion that the similarities which the claimant relied upon constituted relatively simple ideas at such a high level of generality that they concerned the ideas themselves rather than the expression of the ideas.
Not a unique concept
The difficulty for Mr Riddell in alleging that John Lewis has copied his story is that the ‘monster under the bed’ plot is not a unique concept – as Mr Riddell himself seems to have acknowledged.
In the Harry Potter case, the degree of originality of such concepts was one of the court’s considerations.
It is highly unlikely that the court would suggest that Mr Riddell has any legitimate monopolistic claim over this generic scenario, particularly since at the end of Mr Riddell’s book two monsters appear, who do not feature in the John Lewis advert.
If he were to bring a claim, Mr Riddell would probably also allege copyright infringement of his 2012 monster illustration, given that there are similarities between that illustration and the John Lewis monster.
There is some possibility of this argument gaining traction, although again the monster image is somewhat archetypal.
Additionally, John Lewis would have a strong defence in arguing that there are marked differences in the illustration in Mr Underbed and that of Moz.
What can be covered by copyright often comes into question.
Lucasfilm brought a claim against prop designer Andrew Ainsworth for selling copies of original stormtrooper helmets which were based on his original drawings and a clay model.
However, it was ruled that the production of three-dimensional utilitarian or functional helmets did not infringe Lucasfilm’s copyright.
Despite the evident conceptual similarities between the story and the advert, the case law suggests that Riddell would struggle to succeed in court.
Nick McDonald is partner and intellectual property lawyer at Potter Clarkson