Moz the Monster vs Mr. Underbed: The Plagiarism Debate

11/21/2017 01:11 pm ET

By Gina Lodge, Managing Associate at Marks & Clerk

Renowned writer, illustrator and former Children’s Laureate, Chris Riddell, recently made the news with his claim that John Lewis’ highly-anticipated “Moz the Monster” Christmas advert bears a close resemblance to his 1986 picture book, Mr Underbed. On 16th November, Riddell tweeted: “John Lewis helps themselves to my picture book”, sharing a video comparing John Lewis’ advert with the pages of his book. John Lewis has denied any wrongdoing and dismissed the claim, stating that “the story of a big hairy monster under the bed which keeps a child from sleeping is a universal tale which has been told many times over many years”.

Whilst the author of Mr Underbed has said that he will not be suing the department store, this case poses a number of questions around intellectual property infringement in the business world. Did John Lewis go too far or has the retailer stayed on the right side of the line?

Copyright infringement: the legalities

In order to infringe copyright in the UK, the infringing work must be a direct or indirect copy of the copyright work (i.e. not derived from some unrelated source).  John Lewis has therefore been quick to point out that the storyline of Moz the Monster is based on a universal tale of children being afraid of monsters under the bed, thereby denying that the advert was derived from Chris Riddell’s work.

Did John Lewis go too far or has the retailer stayed on the right side of the line?

In any case, even if Moz the Monster has the same ideas and themes as Mr Underbed, there is no copyright protection for an idea as such. Copyright protects the expression of an idea. Therefore, what must be shown to be copied is the way in which that idea has been expressed. The copy does not need to be identical, but there must be sufficient objective similarity for the infringing work to be properly described as a substantial reproduction or adaption of the copyright work.

Previous high-profile cases

Where the line is drawn between copying an idea and copying the expression of that idea is highly fact dependent and Chris Riddell would not be the first author to assert that a third party has gone too far. The issue was famously considered in the high-profile copyright infringement claim brought by the authors of The Holy Blood and the Holy Grail (“HBHG”) against Dan Brown’s The Da Vinci Code. Whilst Dan Brown accepted that he had used HBHG in his research for The Da Vinci Code, the Court recognised that what he had taken from HBHG were only generalised propositions, at too high a level of abstraction to qualify for copyright protection.

In other words, The Da Vinci Code merely copied ideas from HBHG, and not the expression of those ideas, thus there was no copyright infringement. John Lewis would likely use a similar argument here: the retailer has simply taken the idea of a monster beneath a child’s bed (which it says was not even derived from Chris Riddell’s work but rather from an age-old story) and expressed it in its own original way.

Seek advice from the experts

However, each case will turn on its own particular facts and so copyright owners should always seek expert legal advice if they suspect that their rights may have been infringed. For example, as copyright can protect many aspects of a creative work in their own right – for example the individual illustrations in Chris Riddell’s book or the accompanying text – consideration should be given to whether each of these aspects may have been copied even if the work as a whole has not been copied.

Chris Riddell’s call to action

Chris Riddell’s call for “advertising agencies and the big companies they work for [to] take care to credit creative people whose work they might reference” also raises interesting legal questions.

An author of a copyright work does have the right to be named as the author of his own work and indeed the “fair dealing” copyright defences require that the work is accompanied by sufficient acknowledgement. However, Chris Riddell’s suggestion that John Lewis should have credited him in respect of their own copyright work, the Moz the Monster ad, is misguided: they are not using his work.

It is interesting that Chris Riddell has felt free to air his views on the John Lewis advert.  This may be because the unjustified threats provisions do not apply to allegations of copyright infringement (although care must always be taken before any allegation is made). Where the threats provisions do apply (e.g. in relation to allegations of trade mark, design and patent infringement), intellectual property right owners must exercise care over the claims they make in order to ensure that they do not give the infringer the right to bring a claim against them for unjustified threats.

Since Chris Riddell made his claim on Twitter, the response has been overwhelming and demand for his Mr Underbedbook has skyrocketed, so much so that the publisher has ordered a new print run. The publisher is also planning a ‘Battle of the Monsters’ marketing campaign to encourage the British publish to buy the Mr Underbed book instead of the Moz the Monster book. Whilst it appears that no copyright infringement claim will be brought in this case, it has certainly raised awareness of the potential legal and reputational dangers of the creative storyboarding process.

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