A good old fashioned copyright case came on for trial before Mr Justice Kitchin last month (Nova Productions Ltd v Mazooma Games Ltd and others  EWHC 24 (Ch) (20 Jan 2006). The subject of the litigation was two coin operated video games. The issues in the case were whether the following copyrights had been infringed:
(1) Artistic copyright in bitmap graphics and the frames generated and displayed to users;
(2) Literary works, being design notes and the program to implement the game;
(3) A dramatic work embodied in the game itself; and
(4) Film copyright.
Since the claim focused on allegations of infringement of artistic copyright the judge analysed in some detail the House of Lords' judgment in Designer Guild Limited v. Russell Williams (Textiles) Limited ( UKHL 58 (23 Nov 2000). From that case, he drew the following principles:
(1) Although the copied features must be a substantial part of the copyright work, they need not form a substantial part of the defendant's work. Consequently. the overall appearance of the defendant's work may therefore be very different from the copyright work while nevertheless infringing.
(2) Accordingly, the next step in such an action is to identify those features of the defendant's design which the claimant alleges have been copied from the copyright work. Those similarities form the foundation upon which the court will proceed to consider whether or not there has been copying. In arriving at its conclusion the court will consider the similarities and differences between the works and whether or not the particular similarities relied on are sufficiently close, numerous or extensive to be more likely to be the result of copying than coincidence. Similarities may be disregarded because they are commonplace, unoriginal, or consist of general ideas. If the similarities are such as to raise an inference of copying the burden passes to the defendant to establish that, despite the similarities, they did not result from copying.
(3) Once copying is established then the question arises whether what has been taken constitutes all or a substantial part of the copyright work. At this point the only issue is whether or not the features which have been taken represent a substantial part of the copyright work. A visual comparison of the two designs to see the extent to which they may differ in appearance is unnecessary and liable to mislead.
(4) In assessing whether or not a substantial part has been taken it is important not to deal with the copied features piece-meal. Rather, it is the cumulative effect of the copied features which is important. The court must consider whether, taken as a whole, they constitute a substantial part of the copyright work.
Applying these principles in detail, his lordship found that there had not been copying and the claim failed.