McDonald v. West, 669 F. App'x 59

Plaintiff Joel R. McDonald, proceeding pro se, filed a copyright infringement suit; the district court dismissed his amended complaint under Federal Rule of Civil Procedure 12(b)(6).
The district court granted defendants’ motion to dismiss for failure to state a claim; judgment entered September 30, 2015.
The appeal presents whether the amended complaint plausibly alleged unlawful copying and substantial similarity between the works.
The Second Circuit reviews Rule 12(b)(6) dismissals de novo, accepting allegations as true and evaluating whether the works incorporated in the pleadings permit a plausible claim.
The district court evaluated substantial similarity by comparing the works and concluded the similarities were to non-copyrightable or publicly available elements, not protectible expression.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether complaint plausibly alleged copying and substantial similarity	McDonald argued the defendant copied his work and that the works are substantially similar	Defendants argued the similarities concern non-copyrightable or public-domain elements and fail to show protectible similarity	Court held complaint failed to plead plausible claim; dismissal affirmed
Whether district court may resolve substantial similarity on Rule 12(b)(6)	McDonald contended factual issues precluded dismissal	Defendants argued substantial similarity can be decided as a matter of law when works are before the court	Court held the district court properly resolved substantial similarity on the pleadings
Proper test for substantial similarity when work uses public-domain elements	McDonald relied on ordinary-observer comparison	Defendants urged a more discerning, refined analysis excluding public-domain elements	Court applied refined analysis: compare only protectible elements and total concept and feel; found no protectible similarity
Whether any similarity related to protectible aesthetic expression	McDonald argued overall total concept and feel was the same	Defendants argued similarities stemmed from non-protectible elements	Court held similarities were to non-copyrightable or public-domain material; no actionable infringement

Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002) (standard of review for Rule 12(b)(6) dismissal)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standards and plausibility)
Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010) (works incorporated in pleadings control and substantial-similarity framework)
Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1986) (works supersede contrary pleadings)
Hamil Am. Inc. v. GFI, 193 F.3d 92 (2d Cir. 1999) (elements of copyrightability and substantial similarity test)
Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101 (2d Cir. 2001) (ordinary observer test for substantial similarity)
Boisson v. Banian, Ltd., 273 F.3d 262 (2d Cir. 2001) (refined analysis when work incorporates public-domain elements)
Key Publ’ns, Inc. v. Chinatown Today Publ’g Enters., Inc., 945 F.2d 509 (2d Cir. 1991) (compare only copyrightable elements in compilations)
Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) (compare total concept and feel rather than dissecting works)
Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127 (2d Cir. 2003) (distinguishing protectible expression from unprotectible elements)
Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231 (2d Cir. 1983) (district court may rule as a matter of law when no reasonable jury could find substantial similarity)