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].’ ”[1] 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.
UNITED STATES of America, Plaintiff-Appellee,
v.
Gilberto ARBELAEZ, Defendant-Appellant.
No. 85–1282.
United States Court of Appeals,
Ninth Circuit.
Submitted June 9, 1986.[* 1]
Decided March 11, 1987.
- ↑ 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).
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.
- ↑ *The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 3(f) and Fed.R.App.P. 34(a).
