Nova Productions Ltd v Mazooma Games Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE KITCHIN |
| Judgment Date | 20 January 2006 |
| Neutral Citation | [2006] EWHC 24 (Ch),[2006] EWHC 189 (Ch) |
| Docket Number | Case No: HC04C02882 |
| Court | Chancery Division |
| Date | 20 January 2006 |
[2006] EWHC 24 (Ch)
The Honourable Mr Justice Kitchin
Case No: HC04C02882
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
MR MARTIN HOWE QC AND MR ROBERT ONSLOW (instructed by Kuit Steinart Levy) for the Claimant
Mr HENRY CARR QC and Mr MICHAEL HICKS (instructed by Wragge & Co.) for the Defendants
Hearing dates: 8–11, 14–18, 21–23 November 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Hon. Mr Justice Kitchin :
Introduction
This is the trial of two copyright infringement actions concerning coin operated games based upon the theme of pool. The claimant ("Nova") is a United Kingdom company which designs, manufactures and sells arcade video games. One of the games which it has so designed and sold and which is the subject of these proceedings is called Pocket Money.
In the first action ("the '882 action") Nova complains of a coin operated video game called Jackpot Pool. This game was created by the first defendant ("Mazooma") which supplied the software to the second defendant ("Games Network"). Games Network copied the software and supplied it to the third defendant ("Gamestec"). Gamestec operates a coin operated terminal called the Gamesnet terminal and has installed Jackpot Pool on that terminal. Mazooma also supplied the Jackpot Pool software to the fourth defendant ("Inspired"). Inspired copied the software and supplied it to the fifth defendant ("Leisure Link"). Leisure Link manufactures and operates a coin operated game terminal known as the IT Box and has installed Jackpot Pool on that terminal. The proceedings against the second to fifth defendants inclusive in the '882 action have been stayed on terms that they will be bound by the outcome of the action as between Nova and Mazooma.
In the second action (the '084 action) Nova complain of a coin operated video game called Trick Shot. The defendant ("Bell-Fruit") has manufactured machines incorporating the game and has operated those machines in the United Kingdom.
Background
The market for video games is essentially split into two sectors, the play at home market and the coin operated market. This action is concerned with the latter. Access to home video games is generally obtained in one of two ways. Games may be bought as cartridges which are then used in conjunction with a games module such as a "Sony Playstation" or as computer disks which may be run on a personal computer. In addition, and more recently, the growth of the internet has led many companies to develop games which may be downloaded to a personal computer. Such games are usually controlled by the use of a keyboard and this is generally considered to be less satisfactory than the use of a dedicated games module.
Coin operated games come in three main varieties. The first is the traditional fruit machine game known in the trade as an amusement with prizes ("AWP") game. The second is a skill based game known as a skill with prizes ("SWP") game. Finally, there is the video arcade style game which is provided for amusement only and does not pay out prizes. Machines which offer prizes are regulated by the Gaming Act 1968. In the case of AWP games the Gaming Act restricts the maximum stake that a player may place and also the maximum jackpot which may be won. Operators of AWPs are required to pay amusement machine licence duty ("AMLD") in respect of each machine that is sited. Trick Shot is an AWP game.
In contrast to AWP games, SWP games require the player to exercise an element of skill to secure the payout of a prize. The Gaming Act imposes no restriction on the maximum stake or prize in relation to such games. If, however, the stake is £1 or higher then AMLD is payable. Pocket Money and Jackpot Pool are both SWP games.
SWP games were first introduced in the 1980s and generally had a question and answer format. Such games presented the player with a question and multiple choice answers from which the player had to select the correct one by pressing a button next to the screen. By successfully answering a number of questions the player could win a cash prize. This type of machine became popular in the mid 1980s and it continues to be successful although, to some extent, its popularity has declined over recent years. For this reason developers of SWP games have sought to develop alternative formats.
SWP machines are purchased by a considerable number of different businesses but two of the largest operators are Gamestec and Leisure Link. They claim to control more than 40% of the market between them.
SWP games, like AWP games, were originally freestanding; that is to say, they were each housed in a separate machine. In about 2000, however, a significant further development occurred. Manufacturers began to develop multi game video terminals and placed them in traditional locations for AWP and SWP machines such as pubs, arcades and betting shops. These machines have a video screen and are based around personal computer technology. The customer uses the touch screen to select a game and to control the play. The benefit of such machines is that they are linked back to the operator's base. This allows the operator to download new games to the terminal and so change the games which the customer can play. Any one terminal may have a number of different games available to be played on it. If a game is successful it is retained. If it is not then it is replaced by another. The Gamesnet terminal developed by Gamestec and the IT Box terminal developed by Leisure Link are two such multi game video terminals. The versatility of these machines has gradually reduced the demand for the traditional stand alone SWP and AWP machines.
Nova and the development and launch of Pocket Money
Nova was established in 1990 and is engaged in the design, manufacture and sale of gaming machines. It has two directors and principal shareholders, Mr Peter Robinson and Mr David Jones. Both gave evidence before me. Mr Jones is primarily responsible for designing games sold by Nova and Mr Robinson is primarily responsible for the commercial and administrative aspects of the business. As I will elaborate later in this judgment Mr Carr QC, who appeared on behalf of the defendants, has mounted a substantial attack on the credibility of Mr Jones and Mr Robinson. The matters to which I refer in this part of my judgment are not, however, controversial.
Mr Jones met Mr Robinson in about 1974 while working for a company called Music Hire Group Limited. This company operated fruit machines, juke boxes, pool tables and video games, mainly in public houses. Mr Robinson and Mr Jones developed together an interest in the video games that they had to maintain. They began to conceive the idea of making their own video games that would be of better quality, more reliable and easier to maintain. In 1979 they left Music Hire Group Limited and set up their own company called Century Electronics. After a considerable degree of effort they devised a coin operated system known as CVS. This sold well in the United Kingdom and the USA and Century Electronics shipped some machines to Japan. In 1983, however, the business rapidly declined and was forced into liquidation.
From 1983 until 1989 Mr Robinson and Mr Jones worked in the USA on the design of various different products. In 1989 they returned to the United Kingdom and set up Nova. Through the 1990's Mr Jones and Mr Robinson produced various games until, in 1999, Mr Jones had the idea of creating an SWP game that rewarded the player's hand-eye co-ordination, rather than his ability to answer questions. Following this idea the first game they developed was called Pharaoh's Gold. This required the player to exercise a measure of skill in firing an arrow at a target. It was one of the best selling SWP machines in the United Kingdom. As a result of the success of this game Mr Robinson and Mr Jones decided to create a further game based upon hand-eye co-ordination with a cash prize. This led to the development of Pocket Money.
Mr Jones explained to me that he designed the graphics and features of the game and wrote the software for it. Mr Carr mounted a substantial attack on Mr Jones and, in particular, the extent to which, in carrying out this work, he derived ideas from other sources and was assisted by other persons. I return to this issue later in this judgment. Those challenges do not, however, impinge upon the nature of the process that Mr Jones undertook and which I describe in the following paragraphs.
Mr Jones produced various design notes for Pocket Money during 2001. When preparing these notes Mr Jones considered a game called Video 8 Ball which was a successful pool game that Century Electronics produced and sold in 1981. This was a one or two player pool simulation game with a two dimensional table, six pockets, seven balls and a cue ball. Points were awarded if the balls were potted. The cue ball was aimed by means of a cross hair target which could be placed anywhere on the table using a joystick.
The design notes which Mr Jones prepared are annexed to the particulars of claim. These collectively comprise one of the literary works upon which reliance is placed in these proceedings. I will return to consider them in detail when I address the issue of infringement. Suffice to say for present purposes that I accept the evidence of Mr Jones that, in so far as they disclose ideas which were incorporated into...
To continue reading
Request your trial
-
Nova Productions Ltd v Mazooma Games Ltd
...works were relied upon, namely "artistic works" "literary works" and "dramatic works." Kitchin J rejected all the claims in both actions, [2006] EWHC 24, [2006] RPC 379. He gave permission to appeal. Mr Martin Howe QC for Nova told us that the claim based on a "dramatic work" would not be p......
-
Abraham Moon & Sons Ltd v Andrew Thornber and Others
...to expand the scope of copyright in artistic works to cover fabric samples. 117 Ms Edwards-Stuart drew my attention to Nova v Mazooma [2006] RPC (14) 379 (Kitchin J) and on appeal [2007] RPC (25) 589 (Jacob LJ). At first instance Kitchin J pointed out that the definition of "graphic work" ......
-
Fitzpatrick Contactors Ltd v Tyco Fire & Integrated Solutions (UK) Ltd
...for the real cost to it of having conducted the litigation successfully”. 48 In Nova Production Limited v Mazooma Games Limited [2006] EWHC 189 (Ch), Kitchin J reviewed those authorities and concluded: “… it seems to me that the court has a broad discretion when deciding whether to award in......
-
THJ Systems Ltd v Daniel Sheridan
...meet the requirements for copyright protection as an artistic work. 213 In Nova Productions Ltd v Mazooma Games Ltd & Ors Rev 1 [2006] EWHC 24 (Ch) the author had designed the individual graphical components from scratch “ using various computer tools such as notional brushes and pencils a......
-
Creative Machines? The Riddle Of AI And Copyright Authorship And Ownership
...question lies, which the Arrangement Model currently lacks. This uncertainty is reflected in Nova Productions Ltd v Mazooma Games Ltd. [2006] R.P.C. 14, one of the few cases where section 9(3) of the CPDA was applied in the The subject was a video game simulating a game of pool. Kitchin J (......
-
Table of Cases
...81 Nova Productions Ltd v Mazooma Games Ltd and Others, [2006] EWHC 24 (Ch) ............................................................................... 45, 55 Omnibill (PTY) Ltd v EGPSXXX Ltd, [2014] EWHC 3762 (IPEC) .......................205 Perfect 10, Inc v Amazon, 508 F3d 1146 (9th......