EDITH H. JONES, Circuit Judge:
Appellant George A. Bridgmon (George) sued Appellee Array Systems Corporation (Array) for copyright infringement and breach of contract. These claims relate to two computer programs known as Application Development Systems ("ADS") and ICUS Technology ("ICUS"). George also sought a declaratory judgment that his wife Kenna Bridgmon (Kenna) has no rights in a copyright registered in George's name.
In 1984 George authored the ADS computer program, for which he obtained a copyright registration. In December 1999, George sued Array for copyright infringement and breach of contract and his wife Kenna for a declaratory judgment regarding their respective interests in the ADS copyright. George alleges that Array was licensed to use and sublicense certain software known as "ICUS" under a license agreement between ICUS Technology Corporation and Array executed on June 6, 1993.
Neither party nor the district court questioned the district court's jurisdiction over this case. However, even where the parties have not raised the issue "it is our duty to raise this issue sua sponte." Gaar v. Quirk, 86 F.3d 451, 453 (5th Cir.1996). The "parties cannot waive a want of subject matter jurisdiction." Hospitality House, Inc. v. Gilbert, 298 F.3d 424, 429 (5th Cir.2002) (quoting Ziegler v. Champion Mortgage Co., 913 F.2d 228, 229 (5th Cir.1990)). Of course, the district court had jurisdiction over George's copyright infringement claim under 28 U.S.C. § 1338(a) (2000), and it could properly exercise supplemental jurisdiction over George's breach of contract claim under 28 U.S.C. § 1367(a) (2000). A jurisdictional problem may have existed with respect to George's claim against his wife for a declaration that his wife owned no rights in the copyright. The district court's jurisdiction over this claim, which asserted the superiority or preemption of George's statutory right under the Copyright Act over Kenna's asserted Texas community property interest, is not directly controlled by our previous decision in Rodrigue v. Rodrigue, 218 F.3d 432 (5th Cir.2000), and raises difficult questions.
Having addressed the jurisdiction of the lower court, we now turn to the district court's grant of summary judgment on the copyright infringement and breach of contract claims. A district court's grant of summary judgment is reviewed de novo. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir.1995) (en banc). Summary judgment is appropriate when, viewing the evidence and all justifiable inferences in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 1551-52, 143 L.Ed.2d 731 (1999); see also Fed.R.Civ.P. 56(c). If the moving party meets its burden, the non-movant must designate specific facts showing there is a genuine issue for trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc).
George contends that Array's use and sale of the ICUS software infringes his copyright in ADS. George was, however, unable to produce a copy of the ADS software; the only evidence of its content consisted of his oral testimony and a reconstruction of ADS created by Array's expert witness.
A copyright infringement claim requires proof of (1) ownership of a valid copyright and (2) actionable copying, which is the copying of constituent elements of the work that are copyrightable. Eng'g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1340 (5th Cir.1994) (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)). Two separate inquiries must be made to determine whether actionable copying has occurred. The first question is whether the alleged infringer copied, or "actually used the copyrighted material in his own work." Id. Copying can be proven by direct or circumstantial evidence. Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir.1946) (Frank, J.). Circumstantial evidence may support an inference of copying if the defendant had access to the copyrighted work and there is "probative similarity" between the copyrighted work and the allegedly infringing work. Eng'g Dynamics, Inc., 26 F.3d at 1340.
The second question is whether "substantial similarity" exists between the copyrighted work and the allegedly infringing work.
George contends that he need not produce evidence of substantial similarity between the copyrighted software and the software used by Array because there is evidence of direct copying. This argument simply misperceives that "not all `factual' copying constitutes legally actionable copyright infringement."
King, 179 F.3d at 376 (internal citations omitted). Following King, George's failure to adduce evidence to allow a comparison between the ADS and the allegedly infringing program vitiates his claim.
George also sued Array for breach of contract based upon a software license agreement between Array and ICUS Technology Corporation. Under Texas law, "[t]he essential elements in a breach of contract claim are as follows: (1) the existence of a valid contract; (2) that the plaintiff performed or tendered performance; (3) that the defendant breached the contract; and (4) that the plaintiff was damaged as a result of the breach." Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 593 (Tex.App.—Houston [14th Dist.] 2000, no pet.). Apart from his uncorroborated and conclusory testimony, George has offered no evidence to show that the software used by Array is the same software that was licensed to Array. Such unsubstantiated or conclusory assertions are incompetent summary judgment evidence and cannot defeat a motion for summary judgment. Hugh Symons Group, PLC v. Motorola, Inc., 292 F.3d 466, 470 (5th Cir.), cert. denied, ___ U.S. ___, 123 S.Ct. 386, 154 L.Ed.2d 295 (2002).
Array cross-appeals the district court's award of $50,000 in attorneys' fees, an award substantially smaller than Array's lodestar amount of $177,507. Array asserts that the district court legally erred and abused its discretion by failing to articulate reasons for its decision. Although appellate review would have been easier with a written statement of reasons, the court did not err or abuse its discretion under the circumstances of this case. Hogan Sys. v. Cybresource Int'l, Inc., 158 F.3d 319, 325 (5th Cir.1998).
The Copyright Act authorizes an award of attorneys' fees to a prevailing party. 17 U.S.C. § 505 (2000). On appeal, we review
In this case the district court stated,
The court cited and, we are confident, applied the relevant authorities, and it explicitly stated that its award promotes the purposes of the Copyright Act
Array correctly asserts, however, that it may recover additional attorneys' fees as a successful appellee. Maljack Prods. v. GoodTimes Home Video Corp., 81 F.3d 881, 890-91 (9th Cir.1996). George founded this appeal on unreasonable positions. He failed to distinguish or even cite King v. Ames, supra, a case precisely on point. He argued that he need not prove substantial similarity where there is evidence of direct copying despite this court's express holdings to the contrary. Rather than argue that these cases were wrongly decided, he ignored them and cited cases from other jurisdictions. We remand to the district court for a determination of Array's reasonable fees incurred for responding to George's appeal.
Since George Bridgmon was unable to raise a genuine issue of material fact with respect to his claims for copyright infringement and breach of contract, we affirm the district court's grant of summary judgment in favor of Array on these claims. We dismiss as moot George's declaratory judgment action against Kenna. Finally, we vacate and remand the district court's award of attorneys' fees to determine the amount of fees that Array should be awarded for its costs arising out of this appeal.
AFFIRMED IN PART, DISMISSED IN PART, VACATED IN PART, AND REMANDED.