Yesterday the Court of Appeal handed down judgment in the case of Nova Productions Ltd v Mazooma Games Ltd; Nova Productions Ltd v Bell Fruit Games Ltd  EWCA Civ 219, an appeal from the decision of Kitchin J. It found in favour of the defendants.
Wragge & Co’s Brands Litigation Team advised the successful defendants. Team leader, Cerryg Jones, said: "The case is a very important reminder that it is not, and should not, be an infringement of copyright simply to use general ideas that are expressed in a copyright work. Lord Justice Jacob's conclusion that this would turn copyright into an instrument of oppression, rather than a means of encouraging creativity, is to be very much welcomed."
In the appeal, Nova claimed that its artistic and literary copyrights in its video game Pocket Money, which was based on the theme of pool, had been infringed by the defendants' pool-themed video games. The claim to artistic copyright was in respect of the visual appearance (the output) of Pocket Money, whereas the claim to literary copyright was in respect of the software code and preparatory design material for that software.
Nova did not claim that any of the defendants had directly copied the software code of 'Pocket Money'. It argued that the code had been infringed because of the alleged similarity between the visual appearance of each game. The Court of Appeal said that copyright must not be used to stifle the creation of individual works which are actually very different. But as well as its general importance in affirming the scope of copyright protection, the decision is particularly important in relation to two specific points covered in the appeal.
The first is whether, in assessing the artistic quality of a drawing that forms part of a series of stills - such as in a cartoon - the differences between the stills can be taken into account as part of the graphical quality. The court held that a series of drawings is simply a series of graphic works, and putting together a series of still images does not create an additional copyright work or protection above and beyond the still images.
Secondly, and of wider importance, the Court of Appeal has affirmed the principle established by Pumfrey J in Navitaire v easyjet, that there can be no infringement of copyright in computer code based on any similarity in the visual output from that code. Deciding whether literary copyright in computer code has been infringed requires an analysis of whether the code itself has been copied, rather than an analysis of whether there is any visual similarity in the outputs of that program.