The opinion of the court was delivered by: BAER
HAROLD BAER, JR., District Judge:
Defendant Applied Systems, Inc. has moved pursuant to Fed. R. Civ. P. 56 for summary judgment dismissing plaintiff's copyright infringement and Lanham Act causes of actions and for partial summary judgment against plaintiff's trade secret misappropriation cause of action. Plaintiff has withdrawn its Lanham Act claim. See Plaintiff's Memorandum of Law in Opposition to Defendant's Second Motion for Summary Judgment at 1 n.1. Defendant's motion with respect to copyright infringement is granted in part and denied in part. Defendant's motion with respect to trade secret misappropriation is denied.
Harbor Software brought this action alleging copyright infringement, false designation of origin, fraud, trade secret misappropriation, unfair competition and unjust enrichment. These allegations are based on a failed business relationship between Harbor Software and Applied Systems under which Applied Systems was, according to the complaint, to incorporate plaintiff's computer program, the Sales Center Manager ("SCM"), into its own program, The Agency Manager ("TAM"). Plaintiff claims that Applied Systems stole and copied SCM and used the technology in an updated version of TAM. Defendant denies these allegations.
This is the Court's third substantive decision in this case. Applied Systems moved for summary judgment dismissing all causes of action except copyright infringement. On June 5, 1995, the Court denied that motion in its entirety. See Harbor Software, Inc. v. Applied Systems, Inc., 887 F. Supp. 86 (S.D.N.Y. 1995) (Harbor Software I). As to the copyright claim, this Court has undertaken the three-part abstraction-filtration-comparison analysis created by the Second Circuit in Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693, 706 (2d Cir. 1992).
On May 14, 1996, the Court found certain nonliteral elements of SCM, as represented in a series of graphical exhibits, were protectable under the Copyright Act. See Harbor Software, Inc. v. Applied Systems, Inc., 925 F. Supp. 1042 (S.D.N.Y. 1996) (Harbor Software II). Familiarity with these decisions is presumed.
I. Standard for Summary Judgment
The standard for granting summary judgment was previously set forth in this Court's decision denying defendant's first motion for summary judgment. For sake of clarity, it is restated here:
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment where the evidence shows that "there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "Summary judgment is properly regarded . . . as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 1). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). An issue of credibility is insufficient to preclude the granting of a motion for summary judgment. Neither side can rely on conclusory allegations; instead, the disputed issues of fact must be supported by evidence that would allow a "rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Finally, factual disputes that are irrelevant to the disposition of the suit under governing law will not preclude entry of a summary judgment. Anderson, 477 U.S. at 248.
Harbor Software I, 887 F. Supp. at 89.
II. Copyright Infringement
To establish a claim for copyright infringement, plaintiff must prove: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 113 L. Ed. 2d 358, 111 S. Ct. 1282 (1991). The second element of this test requires plaintiff to show both that: "'(1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's.'" Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995) (quoting Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 122-23 (2d Cir. 1994)). As discussed above, the ...