On 20 January 2006 Kitchin J. gave a judgment in a copyright dispute over computer games, holding that there was no infringement. The judgment is of interest not just as another failed 'look and feel' case, but also because the claimant relied not only on the program source code but also on a variety of copyright works embodied in the software and its preparatory design materials.
The claimant company Nova had created and distributed a successful video arcade prize game called ‘Pocket Money’, based on the theme of pool. The designer of Pocket Money was a Mr Jones.
Mazooma designed and supplied games for use on the IT Box and Gamestec multi-game networked video game terminals. Bell Fruit designed and operated free standing arcade video games. Nova complained that Mazooma’s Jackpot Pool and Bell Fruit’s Trick Shot games infringed Nova’s copyright.
Nova’s Pocket Money game was a skill with prizes (‘SWP’) game, which rewarded the player’s hand-eye coordination in playing pool with a cash prize. Mazooma’s Jackpot Pool was also an SWP game based on hand-eye co-ordination.
Bell Fruit’s Trick Shot was an amusement with prizes (‘AWP’) game, which did not involve skill but did offer the opportunity to win prizes.
It was common ground that representatives of Mazooma and Bell Fruit had both played Pocket Money at a trade exhibition and their designers had drawn inspiration from Pocket Money before creating their games.
Nova alleged that Mazooma and Bell Fruit had infringed copyright in various works embodied in or underlying Pocket Money. The works in which copyright was alleged to subsist were:
(1) Artistic works, being the bitmap graphics created by Mr Jones and the composite frames generated from the bitmap graphics and displayed by the program in use.
The judge observed that the bitmap files created by Jones and stored in the computer memory were themselves artistic works. The composite frames which the computer program generated from the bitmaps while the game was being played, were also artistic works. They were created either by Mr Jones or by the computer program that he wrote. In the latter event they were computer-generated works of which, under S9(3) of the Copyright Designs and Patents Act 1988, Mr Jones was the author as the person who had made the arrangements necessary for the creation of the works.
The judge also noted that this analysis was not affected by player input: “The appearance of any particular screen depends to some extent on the way the game is being played…. The player is not, however, an author of any of the artistic works created in the successive frame images. His input is not artistic in nature and he has contributed no skill or labour of an artistic kind. Nor has he undertaken any of the arrangements necessary for the creation of the frame images. All he has done is to play the game.”
(2) Literary works, being Mr Jones’ design notes and the program he wrote to implement the game.
It was common ground that both the computer program embodied in Pocket Money and the design notes, the latter being preparatory design materials for a computer program, were literary works.
(3) A dramatic work embodied in the visual experience generated by the game.
As to this, Nova argued that Pocket Money generated an ordered sequence of events within an overall framework, in particular a sequence of the pool cue pulsing in and out in conjunction with a power meter, followed by the cue striking the ball and the rolling behaviour of the ball on the two dimensional surface of the table.
The judge found that it was quite impossible to say that the Pocket Money game was a dramatic work as it was not a work of action intended to be or capable of being performed before an audience. It was a game. The sequence of images varied greatly from game to game, depending on the manner in which it was played, and there was simply no sufficient unity within the game for it to be capable of performance.
Nova also formally alleged infringement of film copyright, while accepting that at first instance level, previous authority precluded a finding of infringement of any film copyright where, as here, there had not been copying by photographic means.
The questions of infringement, therefore, were restricted to the artistic and literary copyright works.
As to infringement generally, the judge found that certain features of Trick Shot and Jackpot Pool were to some extent derived from or inspired by Pocket Money. Having arrived at that conclusion he had to consider whether that meant that a substantial part of any copyright work had been reproduced. The judge emphasised that the issue had to be considered separately for each class of copyright work relied upon.
Nova relied upon 12 alleged similarities in Trick Shot and 13 in respect of Jackpot Pool. The judge conducted a detailed analysis of each point of similarity, most of which were visual (such as the pulsing power level being shown by an animation cycle in which the cue moves away from and towards the cue ball and a bar graphic varies with the power level). We report only his general conclusions.
As to artistic works, the reproduction in the defendants’ games was alleged to be of the composite frames, not of any individual bitmap files as such. Overall, in relation to artistic works, the judge found that the features alleged to have been copied were no more than ideas at a high level of abstraction which had no meaningful connection with which the graphic works relied upon.
As to literary works, the design notes were found to comprise a series of jottings and ideas, which contained no sketches of the screens alleged to have been copied. Nor were key features alleged to have been copied embodied in the design materials at all.
The allegation of infringement of copyright in the computer program itself raised additional issues, explained by Pumfrey J in Navitaire Inc v Easy Jet Airline Company  EWHC 1725 (Ch). As in that case, it was not contended that the defendants ever had access to or copied Nova’s code directly, rather the defendants had infringed the copyright in the program by copying the outputs which appear on the screen.
Kitchin J summarised the effect of Navitaire as being that it was important to identify the relevant skill and labour that went into writing a computer program; that a distinction had to be drawn between a set of instructions to do something and the product; and that the analogy with the plot of a novel, which if it was copied, could amount to substantial reproduction of the work, was a poor one when it came to computers. He expressed no view on whether the full reasoning in Navitaire would apply to preparatory design materials as well as to computer programs themselves.
On the facts, the judge held that the elements alleged to infringe were cast at such a level of abstraction and were so general that he could not conclude that they amounted to a substantial part of the computer program. They were ideas which had little to do with the skill and effort expended by the programmer and did not constitute the form of expression on which the literary works relied upon.
He reached the same conclusion by applying the principles explained in Navitaire, commenting that such similarities that exist in the outputs do not mean that there are any similarities in the software. What has been taken was a combination of a limited number of generalised ideas which are reflected in the output of the program and does not form a substantial part of the computer program itself. Consideration of Article 1(2) of the Software Directive confirmed this position: ideas and principles which underlie any element of a computer program are not protected by copyright under the Directive.
It would be easy to dismiss this case as another predictable failure to protect the ‘look and feel’ of computer software. However, it does contain pointers to areas in which software infringement cases could succeed in the future.
It confirms the approach taken in Navitaire to infringement of copyright in source code. It will clearly continue to be difficult, if not impossible, to extract high level functional or behavioural architecture from source code and match it to what is said to have been taken by the alleged infringer.
However, the judge’s finding that copyright subsists in composite frames generated by the program in use, regardless of input by the player of the game, is likely to strengthen the hand of claimants alleging visual similarities – even though on the facts of this case the similarities were held to be too high level and the differences too great to amount to infringement.
The case is also of interest for the attempt to rely on preparatory design materials. On the facts, it failed – a set of materials described as ‘a series of jottings and ideas’ was perhaps not a promising starting point. However, the case leaves open, as did Navitaire, the position if someone copies high level functional architecture which is embodied in an original underlying specification. The unwillingness of Kitchin J to comment on whether the full Navitaire reasoning applies to preparatory design materials, suggests that infringement of underlying design materials and specifications remains open as a potentially fertile area for future litigation.
Nova Productions Ltd v Mazooma Games Ltd & Ors; Nova Productions Ltd v BellFruit Games  EWHC 24 (Ch)
Kitchin J, 20 January 2006