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Peter F. Gaito Architecture, LLC v. Simone Development Corp.

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Argued: February 1, 2010

Before: KATZMANN AND LYNCH, Circuit Judges, CHIN, District Judge.*fn2

This case calls upon us in principal part to determine whether a district court may consider the question of non-infringement in a copyright action on a Rule 12(b)(6) motion to dismiss. We hold that, under the circumstances of this case, the district court properly determined non-infringement as a matter of law, and did not err in concluding that plaintiffs’ Amended Complaint – together with those documents incorporated therein – fails to adequately allege substantial similarity between defendants’ work and the protectible elements of plaintiffs’. We therefore affirm the judgment of the district court.

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