Nova Productions Ltd v Mazooma Games Ltd & Ors

A series of computer-generated static frames does not become a further unitary graphic work merely because it creates an illusion of movement. Copyright infringement requires reproduction of the protected work, or a substantial part of its protected expression. Common or highly abstract game features, including a combination of ideas, do not meet that test.

Under the Council Directive 91/250/EEC on the Legal Protection of Computer Programs, copyright in a computer program and its preparatory design material protects expression, not program functions, business logic or ideas inferred from output. Independently developing software which emulates another program's results, without copying its code, architecture or protected graphics, does not infringe.

Nova Productions Ltd appealed against Kitchin J’s dismissal of two copyright infringement actions concerning its computer pool game, Pocket Money. The respondents’ games were Jackpot Pool and Trick Shot.

Nova initially relied on artistic, literary, dramatic and film copyright. It abandoned the dramatic-work claim and did not pursue film copyright on appeal. The remaining claims concerned screen graphics and the computer program or its preparatory design material.

The judge found that the games looked and played differently. Some general features had been inspired by Pocket Money, but no program code was copied and the individual graphics had been independently drawn. The Court of Appeal considered whether a sequence of images was a separate artistic work and whether abstract functional similarities constituted reproduction of a substantial part of a computer program.

1. Appeal dismissed. Jacob LJ gave the judgment, with which Lloyd LJ and the Chancellor agreed. Kitchin J had correctly dismissed both infringement actions.

2. A sequence of static drawings or computer frames is a series of separate graphic works. It does not constitute an additional artistic work merely because the sequence conveys movement. The statutory creation of film copyright reinforced that conclusion. Since Nova accepted that there was no frame-for-frame reproduction, its artistic-work claim failed at the threshold.

3. In any event, the respondents had not reproduced a substantial part of the artistic works. The Court followed the appellate restraint stated in Designer Guild v Russell Williams [2001] FSR 113. The judge had considered the alleged combination of features. Most were commonplace, and the limited features derived from Nova were implemented very differently. Evidence of copying a small detail may establish copying, but does not itself establish that a substantial part of the copyright work was taken.

4. The literary-work claim also failed. The Council Directive 91/250/EEC on the Legal Protection of Computer Programs protects the expression of a computer program and its preparatory design material, rather than ideas and principles underlying any element of the program. A combination of abstract ideas remains an idea. The relevant similarities concerned general functional ideas and did not reproduce protected expression or a substantial part of Nova’s program.

5. The Court approved and applied the reasoning in Navitaire v easyJet [2004] EWHC 1725 (Ch). A program may lawfully emulate another program’s output where its author has not copied program code, program architecture or protected graphics. Preparatory design material is protected as expressed literary work, such as a written specification, but the functions which the intended program is to perform are not protected.

6. No reference to the European Court of Justice was necessary. The relevant law did not permit copyright protection for ideas at the high level of abstraction advanced by Nova.

• Court of Appeal (Civil Division) — Nova’s appeal was dismissed: [2007] EWCA Civ 219.
• High Court, Chancery Division (Intellectual Property) — Kitchin J dismissed Nova’s copyright infringement actions: [2006] EWHC 24 (Ch); [2006] RPC 379.