Page:Frybarger v. International Business Machines.pdf/3

, 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 Jr. 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.

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” video­ game 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 Jr. 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 Jr. computer, “TRICKY TRAPPER” in play on an Apple II computer and on videotape, and four other videogames. 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,