669 F. App'x 59
2d Cir.
2016

SUMMARY ORDER

Plаintiff-appellant Joel R. McDonald, proceeding pro se, appeals from a judgment of the district court entered September 30, 2015, dismissing his copyright infringement action. By memorandum and order entered the same day, the district court granted defendants’ motion to dismiss рursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

*60“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing thе complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferеnces in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive a motion to dismiss under Rule 12(b)(6), the complaint ‍‌​​​‌​​​‌​‌​​​‌​‌‌​​​​​‌‌‌​‌​​​‌‌‌​‌​​‌‌​‌​‌‌‌​​‍must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In a copyright infringement action, “the works themselves supersede and control contrary descriрtions of them” in the pleadings. Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 52 (2d Cir. 1986)).

To state a claim for copyright infringement, a plaintiff must plausibly allege that “(1) the defendant has actuаlly copied the plaintiffs work; and (2) the copying is illegal becаuse a substantial similarity exists between the defendant’s work and the pro-tectible elements of [the] plaintiffs.” Id. at 63 (quoting Hamil Am. Inc. v. GFI, 193 F.3d 92, 99 (2d Cir. 1999)).

As a general matter, the test for substantial similarity is “whether an ‘ordinary observer, unless he set out to ‍‌​​​‌​​​‌​‌​​​‌​‌‌​​​​​‌‌‌​‌​​​‌‌‌​‌​​‌‌​‌​‌‌‌​​‍detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.’ ” Id. at 66 (quoting Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir. 2001)). Where, as here, the plaintiffs work incorporates significant elemеnts from the public domain, the ordinary observer test becomes “mоre discerning” because a “ ‘more refined analysis’ is required wherе a plaintiffs work is not ‘wholly original.’ ” Boisson v. Banian, Ltd., 273 F.3d 262, 272 (2d Cir. 2001) (quoting Hamil Am., 193 F.3d at 101-02, and Key Publ’ns, Inc. v. Chinatown Today Publ’g Enters., Inc., 945 F.2d 509, 514 (2d Cir. 1991)). The plaintiff must allege “substantial similarity between those elements, and only those elements, that providе copy-rightability to the allegedly infringed compilation.” Id. at 272 (quoting Key Publ’ns, 945 F.2d at 514). Courts must compare “the ‘total concept and feel’ of the contested works” rather than “dissect ‍‌​​​‌​​​‌​‌​​​‌​‌‌​​​​​‌‌‌​‌​​​‌‌‌​‌​​‌‌​‌​‌‌‌​​‍the works at issue into separate components and compare only the copyrightablе elements.” Id. (quoting Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1003 (2d Cir. 1995)). Only then can the court determine whether any similarities “аre due to protected aesthetic expressions originаl to the allegedly infringed work, or whether the similarity is to something in the original that is free for the taking.” Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 134-35 (2d Cir. 2003).

A distriсt court can resolve the question of substantial similarity as a matter of law if “the similarity between two works concerns only non-copyrightable ‍‌​​​‌​​​‌​‌​​​‌​‌‌​​​​​‌‌‌​‌​​​‌‌‌​‌​​‌‌​‌​‌‌‌​​‍elements of the plaintiffs work, or because no reаsonable jury, properly instructed, could find that the two works are substаntially similar.” Peter F. Gaito, 602 F.3d at 63 (quoting Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983)). Because a district court faced with a motion to dismiss “has before it all that is necessary to make such an evaluatiоn,” it is “entirely appropriate” for it to evaluate substantial similarity as a matter of law and decide whether the “complaint, tоgether with the works incorporated therein, ... ‘plausibly give rise to аn entitlement to relief.’ ” Id. at 64 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).

Based on those principles and a de novo review of the record, we concludе that the district court correctly dismissed Me-*61Donald’s amended complaint. We therefore affirm for substantially the reasons ‍‌​​​‌​​​‌​‌​​​‌​‌‌​​​​​‌‌‌​‌​​​‌‌‌​‌​​‌‌​‌​‌‌‌​​‍stated by the district court in its thorough and well-reasoned decision.

We have considered all of McDonald’s arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

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