The Hit and the Writ

By Brand Heeler

In the UK, each year’s Christmas TV commercial for the John Lewis chain of department stores has become a bit of a national institution

What’s that saying they have in the music business? ‘Where there’s a bear there’s a hare?’ No, that’s not it… Oh yes: ‘Where’s there’s a hit there’s a writ!’ That’s better! John Lewis’ annual Christmas tearjerker for 2013 has found itself embroiled in a certain amount of unseasonal ill-will, amid accusations that it plagiarises a children’s book ‘Bear Stays Up for Christmas’.

To be sure, there are certain similarities between the two: both feature a bear who is friends with a hare, and who usually misses Christmas because of his hibernation habits. But, as any copyright lawyer will tell you after an eggnog or two, copyright only protects the embodiment of an idea, not the underlying idea itself. So just as we would be perfectly entitled to publish our own original 7-novel series about a little boy wizard who goes to wizard school with his wizard chums and has lots of wizard adventures, so anyone can write what they like about anthropomorphic ursids and their lagomorph pals without fear of an infringement claim, providing they haven’t copied it from someone else.

Of course, there’s a lot of devil in the detail of those italics and it can be very difficult in practice to say where inspiration and research (hurray!) begin and plagiarism (boo! hiss!) ends. But tempting though it may be, you can’t just cherry-pick the similarities and ignore the differences. It’s a holistic kinda thing, and neither the bear/hare combo nor the Yuletide setting are enough on their own. Copyrights are not patents, if you know what we mean.

A similar example from years ago was the case of Dan Brown’s Da Vinci Code against The Holy Blood and the Holy Grail. The former was a fast-paced thriller and clearly a work of fiction. The latter at least purported to be a scholarly work of historical research and fact. The mere coincidence of their subject matter did not make the one a copy of the other, even if Mr Brown had included it among his source materials. It can be hard to decide where dividing lines ought to be drawn in copyright without having the full facts to hand, and individual cases will always turn on their individual facts. It also can’t be denied that successful works will always attract more than their fair share of unwelcome attention – even JK Rowling isn’t immune from that. We’ll just end by noting that, although people have been known to crib from each other, sometimes coincidences can be just that and trends are popular for a reason.

This article contains our thoughts and opinions on an issue of general interest and is written from the perspective of Australian and/or English law. It is not legal advice and is not provided in the context of a solicitor-client relationship. It may not even be relevant to your jurisdiction. No duty of care is assumed or accepted. Please carry out appropriate research and consult with a suitably qualified legal expert before taking any action or making any decisions.