The High Court has once again held that writing original source code to produce a computer program with the same ‘look and feel’ as an existing program did not infringe copyright in the earlier program. The decision in Nova Productions Ltd v Mazooma Games Ltd [2006] EWHC 24 (Ch) followed and builds on some of the principles set out in the earlier decision of Navitaire Inc v Easyjet Airline Company and Another [2004] EWHC 1725 (Ch), where easyJet was held not to have infringed copyright by designing a new reservation system to have the same look and feel as its previous system which was licensed to easyJet by Navitaire.
Nova Productions Ltd brought proceedings for copyright infringement in respect of its arcade video game ‘Pocket Money’ against the proprietors of two other video games Mazooma and Bell Fruit. The Pocket Money game comprised a computer-generated, two-dimensional pool table displayed on a screen. Using an on-screen cue controlled by a rotary controller, the player must attempt to pot balls in the pockets of the table which are all assigned different monetary values. The player must try to pot as many balls as possible to build up the prize money won in the time allowed.
For the court to establish infringement of copyright it had to determine whether Pocket Money embodied copyright works, whether the defendants had copied Pocket Money when they created their games and, looking at the cumulative effect of the copied features, whether they had copied a substantial part of Nova’s copyright work. Nova claimed that the following copyrights had been infringed:
– artistic copyright in bitmap graphics and the frames generated and displayed to users
– literary copyright in design notes and the program to implement the game
– a dramatic work embodied in the game itself.
Artistic Works
Kitchin J held that the bitmap graphics and composite frames were artistic works. He considered s. 4(1) of the Copyright Designs and Patents Act 1988, which defines artistic works and graphic works, and noted that the definition of “graphic work” is inclusive. He compared bitmap graphics to paintings and drawings in that they create a similar visual effect and took the view that they are therefore ‘graphic works’ within the meaning of the Act. Similarly he held that composite frames generated by the computer program using the bitmap files were also artistic works.
Literary Works
A computer program is protected by copyright as a ‘literary work’ under s. 3(1) of the CDPA, as the Act specifically defines a ‘literary work’ as including a computer program and preparatory design material for a computer program. It was not contested by the defendants that both the design notes and program itself were literary works.
Dramatic Work
Following the well known authorities Green v Broadcasting Corporation of New Zealand [1989] RPC 700 and Norowzian v Arks (No. 2) [2000] FSR 363, Kitchin J emphasised that ‘dramatic work’ must be given its natural and ordinary meaning, in that it is a work of action which is capable of being performed before an audience. He rejected the proposal that the Pocket Money game was a dramatic work as the images present on the screen were dependent on the manner in which it was played, and the various elements said to define the dramatic work did not have sufficient unity to be capable of performance. He also rejected the argument that the program code was a dramatic work, and considered that it was ‘a set of instructions which dictates the way in which the game may be played and what will appear on the screen’.
Infringement
There were a number of features of Pocket Money which were alleged to have been copied, and Kitchin J emphasised that it was important to compare the alleged similarities against each kind of copyright separately.
Artistic works:
In support of its claim for infringement, Nova identified a number of similarities between Pocket Money and the infringing works. These included the game being a game with prizes based on the theme of pool; showing the table in plan view; use of a cue which could be moved by a rotary controller, and allowing the player to alter the power of the shot relative to a pulsing power level. Kitchin J found that many of the features relied on were obvious and/or unoriginal (such as the rotary controller for the cue), but concluded that each of the video games contained some of the original features of the Pocket Money game. He also noted however that these relevant features were expressed at a very ‘high level of generality or abstraction’, and that overall a substantial part had not been copied from any of Nova’s works and therefore there was no copyright infringement.
Literary works:
Kitchin J distinguished between similarities in the outputs from the software and similarities in the software itself, confirming the position set out in Article 1(2) of the Software Directive that ideas stemming from software are not protected by copyright under the Directive. In considering the preparatory design materials, he highlighted that none of the relied upon similarities were shown or described at all in the notes, and so there was no infringement of literary copyright in the design documents of these ‘copied features’.
In Navitaire the non-existence of design documents for the program was significant, and the court left open the question of whether a case founded on non-literal high level copying could succeed if the claimant were able to produce and count upon underlying design documents. In Nova Kitchin J did not consider it necessary to explore whether Navitaire applied to preparatory design materials as it applied to computer programs. Navitaire initially planned to appeal the earlier judgment but has since settled the dispute so this question remains unresolved.
Conclusion
This case reconfirms the view that it can be difficult to win a copyright action based on copying of the ‘look and feel’ of a computer program. Indeed Kitchin J repeated the analogy used by Pumprey J in Navitaire Inc v Easyjet Airline Company and Another [2004] EWHC 1725 (Ch) of a chef who copies another chef’s pudding through trial and error to emulate the earlier result, an act which he did not believe was an infringing act. However it should be emphasised that the case relates to specific facts and so caution should be exercised before attempting to recreate an earlier program’s ‘look and feel’, especially in light of the unresolved issue of whether design documents will be considered in the same manner as source code itself. Similarly, potential claimants should not necessarily be dissuaded by the cases to date. In reaching this decision Kitchin J has carefully applied existing case law. Although the decision does not advance the potential to protect copyright in computer games or other similar products, at the same time it does not impair copyright holders’ prospects either. A future case involving less generic concepts and closer concrete similarities between products a decision could very well go the other way.
Helen Hopson is a trainee solicitor in the IP litigation department at Bristows.
