Page:Frybarger v. International Business Machines.pdf/5

 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, 78 L.Ed.2d 331 (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.

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 similiarsimilar [sic]. 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, 85 L.Ed.2d 588 (1985) (“[N]o 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, 470, 98 L.Ed. 630 (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) (“[I]f 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,