CITE: 812 F.2d 525
CMON: March 1987
PLAIN: Frybarger, Anthony James
DEFND: IBM and Gebelli Software
COURT: United States Court of Appeals for the Ninth Circuit 
DATE: March 10, 1987

HISTORY:
Appeal from the United States District Court for the Eastern District of
California, D.C. No. 84-0906-MLS, Milton L. Schwartz, District Judge,
Presiding.

SUMMARY:
  Ideas with only limited range of expression are infringed only by
  virtually identical copies.

JUDGE: NELSON, Circuit Judge
Dorothy W. Nelson, Alex Kozinski and John T. Noonan, Jr., Circuit Judges.

DECISION:

Anthony James Frybarger appeals from a summary judgment in favor of IBM
Corporation, Inc., Nasir Gebelli, and Gebelli Software, Inc. ("Gebelli"),
in his copyright infringement and Lanham Act action. Frybarger claims that
Gebelli copied protected elements of Frybarger's "TRICKY TRAPPER" drawings,
computer program and videogame, in Gebelli's "MOUSER" storyboard, computer
program and videogame, which Gebelli licensed to IBM for use with its PC
Junior personal computer. Frybarger brought an action in United States
District Court for the Eastern District of California, alleging federal
causes of action for copyright infringement under 17 U.S.C. 101-810 (1982),
and unfair competition under the Lanham Act, 15 U.S.C. 1051-1127 (1982),
as well as pendent state law claims for misappropriation of trade secrets,
unfair competition, conversion and unjust enrichment. The district court
granted IBM's motion for summary judgment on the federal causes of action
concluding, as a matter of law, that no reasonable jury could find
Gebelli's works substantially similar to Frybarger's works. The district
court then dismissed Frybarger's state law claims without prejudice.
 
Frybarger only appeals the summary judgment on his federal causes of action.
This court has jurisdiction under 28 U.S.C. 1291. We affirm.
 
FACTS
 
Frybarger was employed by Gebelli in 1982. During the Summer of 1982,
Frybarger submitted design drawings and a flow chart describing his
"TRICKY TRAPPER" videogame to Gebelli pursuant to a confidential
disclosure agreement. In addition, Frybarger had several conversations
with Nasir Gebelli and Gebelli employees regarding his "TRICKY TRAPPER"
videogame and provided, at Gebelli's request, an annotated computer
program and a playable disk of "TRICKY TRAPPER" in September and
November 1982.
 
During the period of Frybarger's employment, Gebelli had a consulting
agreement with IBM regarding the development of electronic videogame
programming for the IBM personal computer. On October 19, 1982, Gebelli
entered into an agreement with IBM to develop three videogames for the
IBM PC Junior personal computer and submitted storyboards to IBM on
November 19, 1982, for two of the proposed videogames. One of the two
storyboards was for Gebelli's "MOUSER" videogame. Soon thereafter, Gebelli
finished the "MOUSER" electronic videogame, registered the copyrights in
it, and IBM began to market and distribute it.
 
In 1984, Frybarger registered the copyrights in his "TRICKY TRAPPER"
videogame. On July 13, 1984, Frybarger filed his first complaint and, on
September 24, 1985, an amended complaint, against IBM, Gebelli, and Nasir
Gebelli, in United States District Court for the Eastern District of
California.  In his amended complaint, Frybarger alleged that Gebelli
infringed Frybarger's copyrights by using elements of Frybarger's "TRICKY
TRAPPER" works in Gebelli's "MOUSER" works, and that Gebelli's infringement
constituted unfair competition under Section 43(a) of the Lanham Act,
15 U.S.C. 1125(a). Frybarger also alleged pendent state law claims for
misappropriation of trade secrets, unfair competition, conversion, and
unjust enrichment. Shortly thereafter, IBM submitted motions for summary
judgment and judgment on the pleadings.
 
On February 10, 1986, the district court held a three and one-half hour
hearing on IBM's motions for summary judgment and judgment on the
pleadings. At the hearing, the district court viewed "MOUSER" in play on
an IBM PC Junior computer, "TRICKY TRAPPER" in play on an Apple II
computer and on videotape, and four other videogames. {n1}  The court also
examined six color photographs, prepared by IBM, comparing key elements
of Frybarger's and Gebelli's videogames, and several affidavits from
videogame, programming, and software experts submitted by each side. At
the close of the hearing, the court granted IBM's motion for summary
judgment on the copyright infringement and Lanham Act causes of action,
concluding, as a matter of law, that no reasonable jury could find
Frybarger's and Gebelli's works substantially similar. The court then
dismissed Frybarger's state law claims without prejudice. The district
court's decision was made applicable to Gebelli and Nasir Gebelli by
stipulation of the parties, and judgment was entered on April 11, 1986.
Frybarger timely appealed.

 
DISCUSSION
 
Summary judgments in copyright infringement cases are subject to de novo
review by this court.  Berkic v. Crichton, 761 F.2d 1289, 1292 (9th Cir.),
cert. denied, 474 U.S. 826, 106 S. Ct. 85 (1985); Litchfield v. Spielberg,
736 F.2d 1352, 1356 (9th Cir. 1984), cert. denied, 470 U.S. 1052, 105 S.
Ct. 1753 (1985). "We may affirm if the record, viewed in the light most
favorable to the [non-moving party], discloses no genuine issues of
material fact and if [the moving party] was entitled to judgment as a matter
of law."  Fisher v. Dees, 794 F.2d 432, 434 (9th Cir. 1986).
 
I.  SUMMARY JUDGMENT
 
Generally, "summary judgment is not highly favored on the substantial
similarity issue in copyright cases".  Berkic, 761 F.2d at 1292. See
Litchfield, 736 F.2d at 1355 ("Substantial similarity is usually an
extremely close issue of fact and summary judgment has been disfavored
in cases involving intellectual property") (citing Twentieth Century-Fox
Film Corp. v. MCA, Inc., 715 F.2d 1327, 1330 n. 6 (9th Cir. 1983)).
Nonetheless, "the question whether there is substantial similarity of
ideas between two works 'may often be decided as a matter of law,'"
Berkic, 761 F.2d at 1292 (quoting Sid & Marty Krofft Television Prods.,
Inc. v. McDonald's Corp., 562 F.2d 1157, 1164 (9th Cir. 1977)) (emphasis
added), and there is no special standard for determining "'whether summary
judgment is appropriate on the issue of substantial similarity of
expression.'" Id. (quoting See v. Durang, 711 F.2d 141, 142 (9th Cir. 1983))
(emphasis added). Thus, "since Krofft, we have frequently affirmed summary
judgments in favor of copyright defendants on the substantial similarity
issue."  Id. (citing Litchfield, 736 F.2d at 1358; Durang, 711 F.2d at 142;
Jason v. Fonda, 698 F.2d 966, 967 (9th Cir. 1982), incorporating by
reference, Jason v. Fonda, 526 F. Supp. 774, 777 (C.D. Cal. 1981)).
 
Summary judgment is clearly appropriate in copyright infringement cases if,
after viewing the evidence and drawing every inference in the light most
favorable to the nonmoving party, the court concludes that no reasonable
jury could find substantial similarity of both ideas and expression between
the works at issue.  Litchfield, 736 F.2d at 1356. See also Durang,
711 F.2d at 143  ("Summary judgment is proper if reasonable minds could
not differ as to the presence or absence of substantial similarity of
expression"); Fonda, 526 F. Supp. at 777 ("Summary judgment is proper when
the Court determines that the similarity between works is insubstantial
as a matter of law . . . . In other words, . . . if it determines that
no reasonable trier of fact could find that the plaintiff has satisfied
both of the Krofft tests.")
 
Because plaintiff bears the burden of proving that the works at issue are
substantially similar in a copyright infringement case, Litchfield,
736 F.2d at 1356 (citing Sid & Marty Krofft, 562 F.2d at 1164), summary
judgment for defendant is appropriate when plaintiff fails to make a
sufficient showing that the ideas and expressive elements of the works
are substantially similar after defendant has properly identified in
a motion for summary judgment that plaintiff has failed to do so. See
Celotex Corp v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553-54, (1986)
(Moving party need only inform the court of the basis of its motion and
is then "'entitled to judgment as a matter of law' [if] the nonmoving
party has failed to make a sufficient showing on an essential element
of her case with respect to which she has the burden of proof"); Barnes
v. Arden Mayfair, Inc., 759 F.2d 676, 680 (9th Cir. 1985) ("'If there is
no genuine issue of material fact, and if the resisting party does not
present a record sufficient to support  [*529]  a reasonable finding in
his favor, a district court has a duty to grant the motion for summary
judgment. '") (quoting Filco v. Amana Refrigeration, Inc., 709 F.2d 1257,
1260 (9th Cir.), cert. dismissed, 464 U.S. 956, 104 S. Ct. 385 (1983)).
Accordingly, Frybarger bears the burden of demonstrating some genuine
issue of material fact as to whether a reasonable jury could conclude
that Frybarger's and Gebelli's works are substantially similar in ideas
and expression. If unable to do so, summary judgment is appropriate.
 

II.  COPYRIGHT INFRINGEMENT
 
To establish a claim for copyright infringement, plaintiff must show that
1) she owns the copyright in the allegedly copied work; 2) defendant had
access to the work; and 3) plaintiff's and defendant's works are
substantially similar.  Cooling Sys. and Flexibles, Inc. v. Stuart
Radiator, Inc., 777 F.2d 485, 491 (9th Cir. 1985) (citing Berkic, 761 F.2d
at 1291); Litchfield, 736 F.2d at 1355; Sid & Marty Krofft, 562 F.2d at 1162.
To show that two works are substantially similar, plaintiff must demonstrate
that the works are substantially similar in both ideas and expression.
Cooling Sys., 777 F.2d at 491; Berkic, 761 F.2d at 1292; Litchfield,
736 F.2d at 1356 (citing Sid & Marty Krofft, 562 F.2d at 1164). For the
sole purpose of IBM's motion for summary judgment, IBM and Gebelli
conceded that Frybarger owns the copyrights in "TRICKY TRAPPER" and that
Gebelli had access to Frybarger's works. Thus, the only question before
us is whether the district court correctly concluded that no genuine issue
of material fact exists as to whether Frybarger's and Gebelli's works are
substantially similar in ideas and expression.
 
Although plaintiff must show that the ideas in the works at issue are
substantially similar, the ideas themselves are not protected by copyright
and cannot, therefore, be infringed. See Harper & Row Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 105 S. Ct. 2218, 2224 (1985) ("No author
may copyright facts or ideas."); Cooling Sys., 777 F.2d at 491 ("Copyright
law never protects the . . . ideas contained in published works.");
Sid & Marty Krofft, 562 F.2d at 1163 ("It is an axiom of copyright law
that the protection granted to a copyrighted work extends only to the
particular expression of the idea and never to the idea itself.")
(citing Mazer v. Stein, 347 U.S. 201, 217-18, 74 S. Ct. 460 (1954)).
This axiom is expressly codified in 17 U.S.C. 102(b) (1982) ("In no case
does copyright protection for an original work of authorship extend to
any idea . . . [or] . . . concept . . ., regardless of the form in which
it is described, explained, illustrated, or embodied in such work.").
 
Those features of Frybarger's works that are ideas are not protected,
therefore, against even directly copied identical ideas in Gebelli's works.
Thus, to the extent that the similarities between Frybarger's and Gebelli's
works are confined to ideas and general concepts, these similarities are
noninfringing. See 3 M. Nimmer, Nimmer On Copyright 13.03[A][1] at 13-21
(1986) ("If the only similarity between plaintiff's and defendant's works
is that of the abstract idea, there is an absence of substantial
similarity and hence no infringement results.") (emphasis in original).
 
The district court concluded that the only similar features in Frybarger's
and Gebelli's works are nonprotectible ideas. As for the expressive
elements in the works, the district court held that no reasonable jury
could find them substantially similar. After viewing Frybarger's and
Gebelli's works, and the other videogames viewed by the district court,
we are convinced that the district court was correct. Although there are
numerous similar features in Frybarger's and Gebelli's works,  {n2}  we
believe that each of the similar features constitutes a basic idea of
the videogames and, to the extent each feature is expressive, that the
expression is "'as a practical matter indispensable, or at least standard,
in the treatment of a given [idea].'"  {n3}  Atari, Inc. v. North American
Philips Consumer Elecs. Corp., 672 F.2d 607, 616 (7th Cir. 1982) (quoting
Alexander v. Haley, 460 F. Supp. 40, 45 (S.D.N.Y. 1978). These ideas, like
all ideas, are not protected by copyright. Id. at 615; see 17 U.S.C. 102(b);
Sid & Marty Krofft, 562 F.2d at 1163; 3 Nimmer, supra, 13.03[A][1], at
13-21. They have been left explicitly unprotected in order to encourage
their individual expression in original works of authorship.
 
Furthermore, the mere indispensable expression of these ideas, based on the
technical requirements of the videogame medium, may be protected only against
virtually identical copying.  Atari, 672 F.2d at 616; Sid & Marty Krofft, 562
F.2d at 1168. Indispensable expression is accorded only this slight protection
because it is so close to the nonprotectible idea itself that "the expression
provides nothing new or additional over the idea." Id. See also Herbert 
Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971)
("When the 'idea' and its 'expression' are thus inseparable, copying the
'expression' will not be barred, since protecting the 'expression' in such
circumstances would confer a monopoly of the 'idea' upon the copyright
owner."); Atari, Inc. v. Amusement World, Inc., 547 F. Supp. 222, 229
(D. Md. 1981) (indispensable expressive features of videogames "are part of
plaintiff's idea and are not protected by plaintiff's copyright"). Viewing
the evidence in the light most favorable to Frybarger, we agree with the
district court that no reasonable jury could conclude that the
indispensable expression of these similar ideas is virtually identical
in Frybarger's and Gebelli's works.
 
For the reasons above, there could be no copyright infringement as a matter
of law. Therefore, the district court properly granted summary judgment.
 
AFFIRMED.


FOOTNOTES:

{n1}  "LADY BUG", "MOUSETRAP", "LOCK n' CHASE" and "DRELBS".
 
{n2}  "TRICKY TRAPPER" and "MOUSER" share the following similar features:
 
    1) The display screen of each game is filled with straight rows of
    pivot points on a solid colored background.
 
    2) Between some of the pivot points are solid lines, connecting two
    pivot points.
 
    3) There is a single protagonist.
 
    4) The single protagonist has legs and a face.
 
    5) The single protagonist moves vertically and horizontally between
    rows of pivot points.
 
    6) The single protagonist may cause one end of a line to come
    unattached from one pivot point and attach to a different pivot
    point by bumping into the line as the protagonist moves between
    rows of pivot points.
 
    7) There is more than one antagonist.
 
    8) Each antagonist moves toward the general location of the protagonist.
 
    9) If an antagonist bumps into the protagonist, the progress of play
    stops.
 
    10) An antagonist will be immobilized if it is surrounded on three
    sides by lines and the protagonist bumps a line across the fourth
    side, closing off the only remaining avenue of exit.
 
    11) The player may obtain points by causing the protagonist to elude
    and 'trap' antagonists.
 
    12) The speed at which the protagonist and antagonists move increases
    as the game progresses.

 
{n3}  This is the scenes a faire doctrine, applied in infringement cases
to "' expression . . . which necessarily results from the fact that the
common idea is only capable of expression in more or less stereotyped
form.'" Atari, 672 F.2d at 616 (quoting 3 Nimmer, supra, 13.03[A][1],
at 13-28).