Full case report

Nova Productions Ltd v Mazooma Games Ltd & Ors (CA)

Reference [2007] EWCA Civ 219; [2007] EMLR 427; [2007] RPC 25; (2007) BusLR 1032; (2007) 30(5) IPD 30032; The Times, 5 April 2007
Court Court of Appeal

Judge Sir Andrew Morritt C andJacob and Lloyd LJJ

Date of Judgment 14 Mar 2007


Summary

Copyright – Graphic works – Literary works – Infringement – Substantial part – Idea/expression – Computer software – Series of graphic works – s.4(2) Copyright, Designs and Patents Act 1988


Facts

N designed, made and sold arcade video games. It claimed that the copyright in its game ‘Pocket Money’ had been infringed by M’s game ‘Jackpot Pool’ and B’s game ‘Trick Shot’. N’s claim was not that the software code of ‘Pocket Money’ had been copied, but rather that the game’s screen appearance (the ‘outputs’) had been copied. N served a schedule of the similarities it relied upon and marked up screen shots to identify the relevant features.

Kitchin J dismissed N’s claims, finding that the limited number of general ideas that had been copied did not amount to a substantial part of N’s work. N appealed.


Issue

(1) Whether there had been any copying of the artistic works making up the game;

(2) If so, whether a substantial part had been taken;

(3) Whether there had been any infringement of the literary copyright in the programmer’s design notes or the program designed to implement the game.


Held

(1) A series of drawings is a series of graphic works, not a single graphic work in itself. There was no additional protection for a series of graphic works such as moving elements of the game. Accordingly, given the concession that there was no frame-for-frame reproduction, there had been no relevant copying.

(2) The Court of Appeal should be chary of taking a different view of substantiality to the trial judge unless satisfied that he has misdirected himself: Designer Guild v Russell Williams [2000] 1 WLR 2416. The Judge had not misdirected himself. What was taken amounted to idea, not expression.

(3) What inspired the defendants’ game was too general to form a substantial part of the claimant’s literary works.


Comment

The idea-expression dichotomoy explored once again. This decision makes clear that a computer program may copy all of the ‘rules’ and functions of another without infringing copyright.


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Instructing Solicitors

Kuit Steinart Levy for N; Wragge & Co for M and the other respondents