18-2019
Perry v. Mary Ann Liebert, Inc.

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
6th day of March, two thousand nineteen.

Present:
            DEBRA ANN LIVINGSTON,
            GERARD E. LYNCH,
                  Circuit Judges,
            MARGO K. BRODIE,
                  District Judge.*
_____________________________________

GUENEVERE PERRY,

                          Plaintiff-Appellant,

                 v.                                                  18-2019

MARY ANN LIEBERT, INC. (MALI),

                          Defendant-Appellee.

GEORGIA STATE UNIVERSITY RESEARCH FOUNDATION,
GEORGE PIERCE

                          Defendants.

_____________________________________

*
  Judge Brodie, of the United States District Court for the Eastern District of New York, sitting by
designation.


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For Plaintiff-Appellant:                      Guenevere Perry, pro se, Port Orange, Florida

For Defendant-Appellee:                       Philip M. Halpern, Scott M. Salant, Collier, Halpern &
                                              Newberg, LLP, White Plains, New York.

        Appeal from the judgments of the United States District Court for the Southern District of

New York (Seibel, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Guenevere Perry, pro se, appeals from the June 4, 2018 and June 14,

2018 decisions and orders of the District Court for the Southern District of New York dismissing

her third amended complaint and denying her motion to amend her complaint respectively. 1

Perry’s complaint asserts that Defendant-Appellee Mary Ann Liebert, Inc. (“MALI”) published

and disseminated an article authored by Dr. George Pierce (the “Pierce Article”) that allegedly

infringed Perry’s copyright in her Dissertation Defense Manuscript (the “Dissertation”).

        “We review the grant of a motion to dismiss under Rule 12(b)(6) de novo, construing the

complaint liberally, accepting all factual allegations in the complaint as true, and drawing all

reasonable inferences in the plaintiff’s favor.” Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d

Cir. 2017) (internal quotations omitted). Perry’s pro se complaint is “entitled to special solitude”

by reading the “pleadings to raise the strongest arguments that they suggest.” Fowlkes v.

Ironworkers Local 40, 790 F.3d 378, 387 (2d. Cir. 2015). “At the same time, a pro se complaint

must allege ‘enough facts to state a claim to relief that is plausible on its face.’” Id. (citing Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We review a district court’s decision to permit or

deny leave to amend for abuse of discretion, but we review the denial of leave to amend based on


1
  Perry filed her second amended complaint as her third amended complaint, and thus the Court will refer
to it as such.


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futility de novo. Balintulo v. Ford Motor Co., 796 F.3d 160, 164 (2d Cir. 2015). We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

                                             *       *       *

          The Copyright Act invests copyright holders with several exclusive rights with respect to

their copyrighted works, including the rights “to reproduce the copyrighted work in copies . . . ; to

prepare derivative works based on the copyrighted work; . . . [and] to display the copyrighted work

publicly.” 17 U.S.C. § 106. “In order to establish a claim of copyright infringement, ‘a plaintiff

with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff’s

work; and (2) the copying is illegal because a substantial similarity exists between the defendant's

work and the protectible elements of plaintiff’s.’” Peter F. Gaito Architecture, LLC v. Simone Dev.

Corp., 602 F.3d 57, 63 (2d Cir. 2010) (quoting Hamil Am. Inc. v. GFI, 193 F.3d 92, 99 (2d Cir.

1999)). A district court may grant a motion to dismiss a copyright infringement claim if it

“determines that the two works are not substantially similar as a matter of law, [and it] can properly

conclude that the plaintiff's complaint, together with the works incorporated therein, do not

plausibly give rise to an entitlement to relief.” Id. at 64 (internal quotation marks and citations

omitted).

          Perry’s complaint, liberally read, alleges that a diagram in the Pierce Article is substantially

similar to multiple diagrams presented in her Dissertation. “The standard test for substantial

similarity between two items is whether an ordinary observer, unless he set out to detect the

disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.”

Id. at 66 (internal quotation marks omitted). Additionally, when faced with works that have both

protectible and unprotectible elements we apply a “more discerning” analysis, and must “ask


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whether the protectible elements, standing alone, are substantially similar.” Id. (internal quotation

marks and citation omitted). It is well established that copyright protects only “the expression of

ideas, not the ideas themselves.” Id. at 67. Here, the “protectible elements” of Perry’s diagrams

are the aesthetic portions, i.e., the arrangement of the diagrams, the shapes, and the colors, not the

actual scientific information being conveyed. See CCC Info. Servs., Inc. v. Maclean Hunter Mkt.

Reports, Inc., 44 F.3d 61, 71 n.22 (2d Cir. 1994) (noting that copyright protection does not extend

to “any idea, procedure, process, system, method of operation, concept, principle, or discovery”

(internal quotation marks omitted)).2

        With this standard in mind, we agree with the District Court that the diagram contained

within the Pierce Article is not substantially similar to Perry’s Dissertation diagrams. Elements of

the Pierce diagram contain aspects that differentiate it from those in Perry’s Dissertation. For

example, the diagrams differ as to color, arrangement, shape, labeling, and number of their

respective elements. Indeed, many of the similarities between the diagrams in Perry’s Dissertation

and that within the Pierce Article are features of all diagrams generally. See Zalewski v. Cicero

Builder Dev., Inc., 754 F.3d 95, 106 (2d Cir. 2014) (noting that a plaintiff cannot “claim copyright”

in binding “conventions” of a type of design). Upon reviewing the two works, we agree that “no

reasonable jury, properly instructed, could find” that the diagrams are “substantially similar.” Peter

F. Gaito, 602 F.3d at 63-64.

        Perry also argues that the Pierce article is a compilation work that simply combines her

diagrams into a single figure. But given that the Pierce diagram’s actual expression, i.e., its




2
  To the extent that Perry argues that the district court erroneously ruled that her diagrams were not entitled
to protection, we note that the district court did not conclude that Perry’s diagrams could not be protected.
Rather, it concluded that the underlying scientific principles conveyed by the diagrams are not protectible.


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arrangement, colors, and shapes, are not substantially similar to Perry’s figures, she has failed to

state a claim of infringement on this basis. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499

U.S. 340, 349 (1991) (“[A] subsequent compiler remains free to use the facts contained in another’s

publication to aid in preparing a competing work, so long as the competing work does not feature

the same selection and arrangement.”). Finally, to the extent that Perry appeals the district court’s

dismissal of her Lanham Act claim, we affirm the district court’s dismissal of that claim for the

reasons already discussed above. See Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 918 (2d

Cir. 1980) (“[T]he absence of substantial similarity leaves little basis for asserting a likelihood of

consumer confusion.”).

       Perry also appeals the district court’s refusal to grant her leave to amend her complaint.

“Although Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend ‘shall

be freely given when justice so requires,’ it is within the sound discretion of the district court to

grant or deny leave to amend.” Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 2018) (citing McCarthy v.

Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007)). A pro se complaint is to be read

liberally, but “[i]t is well established that leave to amend a complaint need not be granted when

amendment would be futile.” Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). The district court

did not err in denying Perry leave to amend her complaint on futility grounds. Perry’s already

twice amended complaint, “liberally read,” does not suggest that the plaintiff “has a claim that she

has inadequately or inartfully pleaded” and that she should therefore be given a chance to reframe

her claim. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Moreover, Perry “has not offered

any pleading that would cure the deficiencies in the extant complaint. Without such a showing, we

can only conclude that repleading would be futile.” Port Dock & Stone Corp. v. Oldcastle Ne.,

Inc., 507 F.3d 117, 127 (2d Cir. 2007).


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       We have considered Perry’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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