Nova Productions Ltd v Mazooma Games Ltd & Ors Rev 1

Copyright protects the expression of ideas in particular works, not general game concepts, commonplace features or abstract functionality. Infringement must be assessed separately for each copyright work. The court must identify the alleged similarities, determine whether copying is more likely than coincidence, and then decide whether the copied features constitute a substantial part of the relevant work. Features should be assessed cumulatively where appropriate, but without losing sight of the skill and labour embodied in that particular work. Computer-program copyright does not protect ideas underlying interfaces or a program’s general function. A computer game is not necessarily a dramatic work: it must possess sufficient unity and be capable of performance before an audience.

Nova Productions designed and sold the coin-operated pool game Pocket Money. It brought two copyright infringement actions concerning Mazooma’s Jackpot Pool game and Bell-Fruit’s Trick Shot game. Nova alleged infringement of copyright in bitmap graphics, screen frames, design notes, computer software, a dramatic work embodied in the game and film copyright.

The central issues were whether the defendants had copied Pocket Money and, if so, whether they had reproduced a substantial part of any relevant copyright work. The actions were tried together before the High Court.

1. Copyright works. The bitmap images stored in the computer memory were graphic works. The composite screen frames were artistic works, including where computer-generated, because the arrangements necessary for their creation had been undertaken by Mr Jones under s.9(3) of the Copyright, Designs and Patents Act. A player’s input did not make the player an author because it involved no artistic skill or labour.
2. Dramatic work. Applying the approach in Green v Broadcasting Corporation of New Zealand [1989] RPC 700 and Norowzian v Arks (No. 2) [2000] FSR 363, a dramatic work had to be a work of action capable of performance before an audience, with sufficient unity and certainty. Pocket Money was a game whose sequence of images varied according to play. Its features were aspects of the game, not a dramatic work.
3. Artistic copyright. The principles in Designers Guild Ltd v Russell Williams (Textiles) Ltd [2001] FSR 11 required the court first to identify the alleged similarities and decide whether they indicated copying. It then had to determine whether what was copied was all or a substantial part of the particular work. The copied features were not to be dissected where they produced a cumulative effect, but general ideas, commonplace features and high-level abstractions were unlikely to amount to a substantial part.
4. Computer programs and design materials. Similar outputs did not establish copying of software, particularly where no code or program architecture had been copied. Following the reasoning discussed in Navitaire Inc v Easy Jet Airline Company [2004] EWHC 1725 (Ch), the general function or business logic of a program could not be protected through literary copyright. Article 1(2) of the Software Directive excluded ideas and principles underlying program elements and interfaces.
5. The features allegedly derived from Pocket Money were implemented differently, expressed at too high a level of abstraction, or were commonplace. They did not constitute a substantial part of any artistic work, computer program or preparatory design material. The film-copyright allegation was conceded at first instance because no photographic copying was alleged.
6. Disposition. Both actions failed. Judgment was given for the defendants.