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Substantial Similarity

Illustrates the "substantial similarity" doctrine from U.S. copyright law, using a set of case summaries.

Peter F. Gaito Architecture, LLC v. Simone Development Corp. 602 F.3d 57 (2d Cir. 2010).


Plaintiffs, Peter Gaito and his architectural firm, collaborated with Simone Development Corporation. Plaintiffs and Simone jointly submitted plaintiffs’ plan for a real estate development to the city of New Rochelle. The city awarded the project to Simone as the developer. After getting the project, Simone terminated its relationship with the plaintiffs. Instead, Simone retained the services of SLCE Architects. The plaintiffs sued Simone and SLCE. They alleged that their designs were used unlawfully in SLCE’s redesign. The defendants moved to dismiss the plaintiffs' complaint for a failure to state a claim. The defendants argued that there was no substantial similarity between the works. The district court granted the motion to dismiss.

Procedural Notes

Quoting Warner Bros. Inc. v. ABC, 720 F.2d 231 (2d Cir. 1983), the Second Circuit noted that there were two grounds for the court to rule on substantial similarity as a matter of law in a motion to dismiss. The district court can rule on the issue if either (1) “‘the similarity between two works concerns only non-copyrightable elements of the plaintiff’s work,’” or (2) “‘no reasonable jury, properly instructed, could find that the two works are substantially similar.’”

Court's Analysis

The Second Circuit affirmed the district court’s holding. The court concluded that the plaintiffs had failed to allege substantial similarity.

The court analyzed whether the defendants misappropriated the plaintiffs’ original expressions. This included plaintiffs' original selection, coordination, and arrangement of expressions.

The court found there were similarities between the designs. However, these similarities were only with regard to unprotectable elements of the designs, and the substantial similarity analysis must look at protectable elements of a work. Comparing only the protectable elements, the defendants’ design was not infringing. For instance:

Plaintiffs’ . . . design consist[ed] of . . . three prominent structures: a 34-story residential tower, a structure containing “proposed retail with residential duplex units above,” and an “8-story mixed-use building,” . . . . Defendants’ re-design, by contrast, consist[ed] of a single structure comprised of a 42-story residential tower, two-story retail spaces . . . , retail space adjacent to the tower to be occupied by two large retail tenants, and retail or commercial space adjacent to the southeastern end of the project site. While plaintiff's design includes a series of townhouses, the re-design contains none.

The court concluded that “the overall visual impressions of the two designs are entirely different. Indeed, nothing in the various schematics and plans indicates any similarities between the specific aesthetic choices embodied in the respective designs."