Page:Frybarger v. International Business Machines.pdf/4

 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.

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'', – U.S. —, 106 S.Ct. 85, 88 L.Ed.2d 69 (1985); Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir.1984), ''cert. denied'', 470 U.S. 1052, 105 S.Ct. 1753, 84 L.Ed.2d 817 (1985). “[W]e 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).

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, [sic] Jason v. Fonda, 526 F.Supp. 774, 777 (C.D.Cal.l981)).

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 (“[S]ummary 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.”)). [sic]

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, – U.S. —, 106 S.Ct 2548, 2553–54, 91 L.Ed.2d 265 (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) (“ ‘[I]f there is no genuine issue of material fact, and if the resisting party does not present a record sufficient to