The Hit and the Writ

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”.

The “bear and hare”

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 the BrandSoup team would be perfectly entitled to publish their 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 details 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 a few years ago is 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.

Happy Christmas to all our readers, four-legged and two. See you in the New Year!

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