Page:Frybarger v. International Business Machines.pdf/6

 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].’ ” 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).)). [sic] 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.