Plaintiff appellant Joel R. McDonald, proceeding pro se appeals from a judgment district court entered September dismissing his copyright infringement action. By memorandum order entered same day, granted defendants ʹ  motion pursuant to Federal Rule Civil Procedure 12(b)(6) failure state claim. We assume parties familiarity with underlying facts, procedural history case, issues appeal.

ʺ We review de novo dismissal complaint pursuant Rule 12(b)(6), construing complaint liberally, accepting all factual allegations in complaint true, drawing reasonable inferences favor. ʺ Chambers Time Warner, 2002). To survive motion under Rule 12(b)(6), complaint must plead  ʺ enough facts state a claim relief that is plausible its face. ʺ Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007); see Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). In a copyright infringement action,  ʺ works themselves supersede and control contrary descriptions them ʺ  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 copyright infringement, a plaintiff must plausibly allege  ʺ (1) defendant has actually copied plaintiff ʹ s work; and (2) copying is illegal because substantial similarity exists between defendant ʹ s work protectible elements [the] plaintiff ʹ s.” Id. at 63 (quoting Hamil Am. Inc. v. GFI , 193 F.3d 92, 99 (2d Cir. 1999)).

As general matter, test substantial similarity is  ʺ whether an ʹ ordinary observer, unless he set out detect disparities, would be disposed overlook them, regard [the] aesthetic appeal as same. ʹʺ Id. at 66 (quoting Yurman Design, Inc. v. PAJ, Inc. 262 F.3d 101, 111 (2d Cir. 2001)). Where, here, plaintiff ʹ work incorporates significant elements from public domain, ordinary observer test becomes  ʺ more discerning ʺ  because  ʺʹ more refined analysis is required where plaintiff work not  ʹ wholly original. ʹʺ Boisson Banian, Ltd. 273 F.3d (2d Cir. 2001) (quoting Hamil Am. F.3d Key Publ ns, Inc. Chinatown Today Publ’g Enters., 1991)). The must *4 allege  ʺ substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed compilation. ʺ Id. at 272 (quoting Key Publ’ns , 945 F.2d at 514). Courts must compare  ʺ  ʹ total concept feel the contested works ʺ  rather than  ʺ dissect works at issue into separate components compare only copyrightable elements. ʺ Id. (quoting Knitwaves, Inc. v. Lollytogs Ltd. , 71 F.3d 1003 (2d Cir. 1995)). Only then can court determine whether any similarities  ʺ are due to protected aesthetic expressions original to allegedly infringed work, or whether similarity is to something original that is free taking. ʺ Tufenkian Imp./Exp. Ventures, Inc. Einstein Moomjy, Inc. 338 F.3d 134 ‐ 35 (2d Cir. 2003).

A can resolve question substantial similarity as matter law if  ʺ similarity between two works concerns only non copyrightable elements work, or because no reasonable jury, properly instructed, could find that two works are substantially similar. ʺ Peter F. Gaito F.3d at 63 (quoting Warner Bros. Am. Broad. Cos. 1983)). Because faced with motion  ʺ has before it is necessary to make such an evaluation, ʺ  it  ʺ entirely appropriate ʺ  it evaluate substantial similarity matter law decide whether  ʺ complaint, together with works incorporated therein, . .  ʹ plausibly give rise an entitlement relief. ʹʺ Id. at (quoting Iqbal U.S. 679).

Based those principles de novo review record, we conclude district correctly dismissed McDonald ʹ amended complaint. We therefore affirm substantially reasons stated by its thorough well reasoned decision.

We have considered McDonald arguments find them be without merit. Accordingly, we AFFIRM judgment court. THE COURT:

Catherine O Hagan Wolfe, Clerk

[*] Judge Richard M. Berman, United States District Court Southern District New York, sitting by designation.