Copyright – Who’s Hiding Under Your Bed? Hairy Monsters And Non-Literal Copying

You may be one of the eight million or so viewers who have already seen the John Lewis 2017 Christmas television advertisement  – Moz the Monster, featuring a lovable monster who hides under a child’s bed. If so, has it perhaps reminded you of any other lovable monster?

Having viewed the TV advert, the former children’s laureate, Chris Riddell, clearly felt that it copied his 1986 children’s book – Mr Underbed – featuring a big blue hairy monster who rocks the bed and snores loudly. A few days after the launch of the TV advert, Mr Riddell tweeted: “John Lewis helps themselves to my picture book”.

John Lewis has strongly denied any allegation of plagiarism, 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 the years. The department store went on to say: “Ours is a Christmas story of friendship and fun between Joe and Moz the Monster, in which Joe receives a nightlight which helps him get a good night’s sleep”, adding, “The main thrust of our story is utterly different”.

Non-literal copying

Although there is no indication that Chris Riddell plans to take formal legal action, his tweet highlights the longstanding tricky area in copyright as to non-literal copying, that is, copying of the ideas of an earlier work rather than the literal words or content.

In contrast to entrepreneurial works –  such as films and sound recordings – where, to infringe, the claimant must show copying of a substantial part of the actual film or recording, copyright in authorial works – such as literary, dramatic, musical, and artistic works – provides wider protection, going beyond the actual content itself.

For example, the author of a novel or a play is entitled in principle to object to the copying of the storyline, plot, incidents, and themes, although it may be more difficult to protect mere copying of the identity of a character. The composer of a musical work may object to the copying of melody or orchestration.

That said, at least in the realm of regular literary, dramatic, musical, and artistic works such as books, the UK courts have often struggled to come up with concrete rules for determining the frontier between acceptable and unacceptable copying. As a result, it is somewhat difficult to predict the outcome of legal actions concerning non-literal copying.

Ideas-expression dichotomy

The most common approach of the UK courts is to look to the so-called ideas-expression dichotomy which provides that, generally speaking, the law protects against copying of the expression of ideas contained in a work but not against copying of the ideas themselves. Under this approach, it is not an infringement to take the ideas or concepts behind, say, a book or song and to incorporate them into a later work. The tricky part is deciding what exactly is meant by the word “ideas” in this context.

The fact is that the law does protect against copying of mere “ideas” provided that those “ideas” are sufficiently detailed and involve sufficient intellectual creativity to warrant copyright protection. At the same time, the law does not protect ideas which are commonplace or which are essentially mere facts. Ultimately, while the courts in the UK are keen to prevent obvious plagiarism, they do not want to give a claimant a monopoly of knowledge or historical research.

In the well-known Da Vinci Code novel case in 2006, the Courts rejected a claim of copyright infringement brought by the authors of “The Holy Blood & The Holy Grail” who claimed that Dan Brown’s world-wide best-seller, the Da Vinci Code, infringed their book. In particular, they argued that Dan Brown’s page-turner had taken a substantial part of the “manner” in which they had expressed their ideas. The Courts rejected this argument, stating that while Dan Brown had expressly drawn on the ideas in their book, such use was merely to provide background material. In this case, the Courts were not prepared to find that the historical research and “facts” about the alleged real meaning of the “Holy Grail” enjoyed copyright protection.

What, then, might be the outcome if Chris Riddell were to claim that the John Lewis “Moz the Monster” TV advert was infringing copyright in his Mr Underbed book? Anyone familiar with the book Mr Underbed and who has watched the TV advert, may notice that both do indeed feature a large hairy, albeit friendly, monster. Visually speaking, both monsters share a large red nose and protruding triangluar-shaped teeth from both ends of its mouth. In terms of scenario, both monsters hide under their respective child’s bed, thus keeping the child from sleeping.

Conclusion

However, it would seem that the scenario of a monster hiding under a human’s bed is commonplace in story-telling and in literature. A friendly monster is likely to have features such as being hairy, having a big nose and protruding teeth. Moreover, young children are notoriously reluctant to go to sleep at night, especially if there is mention of a creature lurking in the dark.

On this basis, although for at least some viewers  – especially perhaps those with young children themselves – the John Lewis TV advert might have brought Mr Underbed to mind, it seems unlikely that this resemblance would be found to go beyond the mere “idea” of Chris Riddell’s book.

But, who really knows what may be hiding under your bed.

Co-written with Kieran Heneghan