By Tom Frederikse, solicitor, Clintons
A video games design and manufacture company has lost its copyright claims against two rivals in a case which sheds considerable light on the extent of legal protection of a video game. Tom Frederikse explains:
In Nova Productions Limited v Mazooma Games Limited (and the parallel Nova v Bell Fruit Games Limited), Nova claimed that both companies had copied its skill-based coin-operated arcade video game “Pocket Money” in which players could win cash prizes. The court found that, although there had been copying, the copying was not “substantial” enough to constitute infringement. Nova had claimed that its game had copyright protection in four ways by virtue of being four different types of work at the same time: an “Artistic work” (the graphics and displays), a “Literary work” (the software program itself and the original design notes), a “Dramatic work” (the game itself as “an ordered sequence of events within an overall framework”) and a “Film” (the series of images). The court agreed that the graphics in the game made it a protectable Artistic work (“similar to that of a painting or drawing”) and that both the programming code and the design notes made the game a protectable Literary work. The game, however, was found not to be a Dramatic work (because it is not capable of being performed and, even if it were, nothing can be both a Literary and a Dramatic work) and probably not a Film (though even if it were, there had been no “photographic copying” by either defendant).
The judge conducted a detailed examination of the games (which included playing the games in court and an astonishing eight-page explanation of each in the judgment) and concluded that there had been copying but that it was not legally “substantial”. For the purposes of the Artistic work, the court found that the features were copied “at a very high level of generality or abstraction” and the copy had “no meaningful connection with the artistic nature” of the original. For the purposes of the Literary work, despite the similarities in the games no substantial verbatim code or architecture had been copied and only “generalised ideas” had been taken. Many of the similar features were found to be “obvious”, “commonplace” or “functional” (and thus, do not help the “substantial” argument). Furthermore, there had been no “slavish copying”, as the defendant’s games (“Jackpot Pool” and “Trick Shot”) had “obviously been the subject of considerable independent creative effort”. This case, for the second time in 12 months, shows that software which takes only the generalised ideas of an earlier program will not be an infringement: “Ideas and principles which underlie any element of a computer program are not protected by copyright”. Similarities which may exist in the “outputs” do not necessarily suggest similarities in the software (or, the mere fact that two puddings look and taste alike does not mean that the latter recipe is a copy of the first). This judgment also confirms the UK as a leading forum for technology-based litigation. The judge is shown to be impressively knowledgeable and, at least in this case, game.
The full text of the judgment may be accessed at:http://www.bailii.org/ew/cases/EWHC/Ch/2006/24.html
The Clintons website is: www.clintons.co.uk