2nd Circuit Affirms Noninfringement Holding on Motion to Dismiss in Copyright Claim

The Second Circuit joined the 5th, 8th, 9th and 10th circuits in finding that it is possible to obtain a Rule 12(b)(6) dismissal of a copyright action where the works in question are attached to the plaintiff's complaint.  Peter F. Gaito Architecture, LLC v. Simone Development Corp.,2010 WL 1337225 (2d. Cir. April 5, 2010).  This case had to do with architectural plans for a project in New Rochelle, New York (pictured above).  The plaintiff architecture firm made a deal to do a joint proposal with the defendant development company.  After the architect submitted plans, a dispute arose between the architect and the developer, so the developer fired the architect and hired a new one.  The fired architect contended that the new plans were substantially similar to its plans and filed a copyright action.  The district court dismissed the case and the court of appeals affirmed.

The complaint had identified 35 alleged similarities between the plaintiffs designs and the redesign.  The court held that substantial similarity claims can be dismissed as a matter of law either (1) because the similarity between the works concerns only non-copyrightable elements, or (2) no reasonable jury could find that the two works were substantially similar.  In this case the court found that "it is patent that the overall visual impressions of the two designs are entirely different."  In rejecting the alleged similarities proposed by the plaintiff the court found that they were no more than ideas and concepts, not the protectable expression of ideas. 

It appears that the Eleventh Circuit has not spoken on the issue.  Therefore, it may be worth the effort to try a motion to dismiss where the plaintiff attaches the two works in question.