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Substantial Similarity

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

Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95 (2d Cir. 2014).


Plaintiffs, James Zalewski and his company, sued defendants for using plaintiffs' copyrighted designs. Plaintiffs had licensed the copyrighted designs to defendants for colonial homes. Plaintiffs alleged that defendants continued to use the designs illegally after the license expired. They alleged that defendants “copied the overall size, shape, and silhouette of his designs as well as the placement of rooms, windows, doors, closets, stairs, and other architectural features.” Defendants alleged that their designs were not substantially similar to Zalewski’s. The district court granted summary judgment to defendants on that claim.

Court's Analysis

The Second Circuit upheld the grant of summary judgment. The court found that the defendants only copied unprotectable elements of plaintiffs’ designs.

The court noted that similarities in unprotectable elements can prove actual copying. However, these similarities cannot prove illegal copying. The court noted it would have to weed out the unprotectable elements when comparing the works. The court concluded that the majority of the similarities were required by the colonial style of the houses. Such elements are scènes à faire that get no copyright protection. Other similarities were “dictated by consumer preferences and the lot the house will occupy.” The court noted that to the extent “Plaintiff adhered to a pre-existing style his original contribution was slight — his copyright very thin. . . . Defendants' houses shared Plaintiff's general style, but took nothing from his original expression.”

For example, the plaintiffs claimed that the defendants’ “‘front porches [were] the same design, size, and in the same location’” as theirs. The court pointed out that “a door centered on the front of the house is typical of many homes, and colonials in particular. Moreover, there are subtle differences in the paneling, size, and framing of Plaintiffs’ and Defendants’ doors. These differences are not great, but given the constraints of a colonial design, they are significant.”