VIDEO GAME COPYRIGHT PROTECTION LAWYERS: NOVA PRODUCTION CASE

Video Game Copyright Protection Lawyers

Video game copyright protection lawyers will all be familiar with the Nova Productions case. The case sets out clearly the issues in deciding whether there has been copyright infringement of a video game for video game copyright protection lawyers.
 
The Nova Production case
 
Nova Productions Limited v Mazooma Games Limited & Others, Nova Productions Limited v Bell Fruit Games Limited, Case No: A3/2006/0205 Court of Appeal (Civil Division), 14 March 2007, [2007] EWCA Civ 219, 2007 WL 711487
 
Before : The Chancellor of the High Court Lord Justice Jacob and Lord Justice Lloyd, 14 March 2007, Hearing dates : 6/7 February 2007 On Appeal from the High Court of Justice Chancery Division (Intellectual Property) The Hon Mr Justice Kitchin HC 04 CO2882/HC 04 CO3084

This case concerned an appeal by Nova Productions Limited from the dismissal of its actions for copyright infringement against Mazooma and others and against Bell Fruit Games Limited from the lower court. The copyright work relied upon is Nova`s computer game based on pool called “Pocket Money”.
 
Nova originally relied upon: i) Artistic works being the bitmap graphics and the frames generated and displayed to the user; ii) Literary works, being Mr Jones`, Novas designer, design notes and the program which he wrote to implement the game; iii) A dramatic work embodied in the game itself; iv) Film copyright.
 
Nova relied upon the first three types and having regard to the decision in Norowzian v Arks [1998] FSR 394 it merely reserved its position in relation to film copyright for possible argument on appeal. In the event it chose not to do so.
 
It also abandoned its dramatic work case. So the court only had to consider the cases advanced based on i) artistic and ii) literary works. Mainly that the defendants through 2 games “Jackpot Pool” and “Trick Shot” copied the bitmap graphics and the frames generated and displayed to the users of “Pocket Money”. Further that they copied the program or code used to implement “Pocket Money”.
 
The key findings of fact in the lower court in respect of similarity were:
 
(1) … the visual appearance and the rules of Pocket Money, Trick Shot and Jackpot Pool are all very different. Each of the games looks and, to my mind, plays in a very different way.
 
(2) It is not contended that the defendants ever had access to or copied the code itself.
 
(3) the use of a power meter was extremely common practice in games design and to have the power level pulsing was an obvious way to implement the feature and so permit the player to select what level of force he wishes to use. … having a pulsing bar going from left to right was a common choice by numerous games designers and … the colour scheme involving the use of yellow changing to red was also a common choice as it conveyed to the player the strength of the shot.
 
(4) the idea of having a visual indication of the direction of the shot was commonplace. … nearly all two dimensional and three dimensional pool games produced over the last 20 years have had some form of dashed or dotted or solid view line projecting from the cue ball for aiming purposes. … having an aiming or view line was a simple or common idea.
 
(5) … it was desirable to have dots or crosses as opposed to a solid view line to avoid the problem of aliasing.
 
(6) Further, it was common ground … that having the cue rotate around the cue ball was an obvious, common and functional way of showing the player how to direct the shot. … the majority of computer pool games in the last 20 years show a cue pointing at the cue ball and rotating around it under player control. It is fundamental to a pool game to show the direction of a shot, and generally speaking it is usual to show the cue rotating around the cue ball to indicate this. … this feature was commonplace.
 
(7) Showing the table in plan view is commonplace.
 
(8) Showing the pulsing power level by an animation cycle in which (i) the cue moves away from and towards the cue ball, and (ii) a bar graphic varies with the power level [is not commonplace but] was one of the obvious ways to implement the commonplace idea of having a pulsing power meter in a pool game.
 
(9) Having values associated with pockets was very common in video pool games.
 
In respect of actual copying the appeal court considered the meaning of artistic work. It was common ground that the individual frames stored in the memory of a computer were “graphic works” with the meaning of the Act. Regarded just as pictures, as “graphic works” in the words of the Act, they are different. They cannot be said to be a substantial reproduction of the corresponding screen in the alleged infringing work. The claimant accepted that the individual screen images in themselves could not be said to be copied but it was a particular artistic element of the images put together in a unique way that had been copied. This argument failed. It does not matter whether there is movement in a series of frames or whether the frame is static. There was no substantial copying and the issue could not be retried on appeal.
 
There is no presumption that whenever copying has been found it must follow that a substantial part has been taken. A case for infringement cannot rest on a few ideas which were “derived from or inspired by the copyright work”. Especially where the games are different from one another and cannot be said to be competitive in anyway.
 
The case for infringement as an artistic work fails.
 
The issue of an alleged infringement of a literary work was then considered. The Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs was considered. According to Lord Justice Jacob, the Directive as implemented in the UK, copyright can subsist in a computer program including its preparatory design material. The directive contemplates just one copyright in a computer program, not one in the preparatory work and the other in the program itself. Although the directive does not refer to substantial copying it is to be read as such. Since nothing was taken in terms of program code or program architecture the similarities that exist in the outputs does not mean that there are any similarities in the software itself. There is a summary of generalised ideas and not a substantial copy of the software itself. Under Article 1(2) ideas and principles which underlie any element of a computer program are not protected by copyright under the Directive. Copyright protects expression of ideas not ideas themselves.
 
The case for infringement as a literal work fails.
 
In summary, Nova argued that Mazooma had copied the `look and feel`, of its game. Nova lost the case, because it couldn’t show that there had been substantial copying of its copyright works (such as substantial copying of coding).
 
An interesting case for video game copyright protection lawyers.