ORDER AND OPINION GRANTING MOTION TO DISMISS Plaintiff Charles C. Green, the author of Bucky’s 9th (Bucky’s), filed this action for copyright infringement, see 17 U.S.C. §101 et seq., on September 14, 2017 against Defendant Chad D. Harbach, the author of The Art of Fielding (TAOF), alleging that Harbach misappropriated Green’s creative efforts in authoring a work “substantially similar” to Bucky’s.1 The Complaint, which incorporates by reference the two works,2 alleges that TOAF and Bucky’s share a common premise, setting, plot and structure, and the Complaint includes examples from the works allegedly indicating such shared content. Defendant now moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), see Dkt. No. 11, on the basis of a single dispositive issue, arguing that the two works are not “substantially similar” and therefore do not support a claim for copyright infringement.3 Having reviewed the two works and the parties’ briefing, I find that the works are not substantially similar, and grant Defendant’s motion.LEGAL STANDARDTo establish copyright infringement, “two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). In the absence of direct evidence, copying is proven by showing “(a) that the defendant had access to the copyrighted work and (b) the substantial similarity of protectible material in the two works.” Kregos v. Associated Press, 3 F.3d 656, 662 (2d Cir. 1993).In determining whether two works are substantially similar, the “underlying issue” is “whether a lay observer would consider the works as a whole substantially similar to one another.” Williams v. Crichton, 84 F.3d 581, 590 (2d Cir. 1996). The question 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.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 66 (2d Cir. 2010) (quoting Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir.2001). A court must “examine the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting of the” works in question. Williams, 84 F.3d at 588. “[T]he determination of the extent of similarity that will constitute a substantial, and hence infringing, similarity presents one of the most difficult questions in copyright law, and one that is the least susceptible of helpful generalizations.” Gaito Architecture, 602 F.3d at 63 (quoting 4-13 Nimmer on Copyright §13.03 (2009)).Furthermore, it is “a principle fundamental to copyright law” that “a copyright does not protect an idea, but only the expression of an idea.” Kregos, 3 F.3d at 663. “Similarly, scenes a faire, sequences of events that necessarily result from the choice of a setting or situation, do not enjoy copyright protection.” Williams, 84 F.3d at 587 (internal quotation marks omitted) (Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir. 1986)). Therefore, when a court “determine[s] that a work contains both protectible and unprotectible elements, [it] must take care to inquire only whether the protectible elements, standing alone, are substantially similar.” Williams, 84 F.3d at 588 (internal quotation marks omitted) (citing Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995)).A court must also “recognize that dissimilarity between some aspects of the works will not automatically relieve the infringer of liability, ‘for no copier may defend the act of plagiarism by pointing out how much of the copy he has not pirated.’” Id. (quoting Rogers v. Koons, 960 F.2d 301, 308 (2d Cir. 1992). “It is only where the points of dissimilarity exceed those that are similar and those similar are — when compared to the original work — of small import quantitatively or qualitatively that a finding of no infringement is appropriate.” Rogers, 960 F.2d at 308.Finally, “[t]he question of substantial similarity is by no means exclusively reserved for resolution by a jury” and the Second Circuit has “repeatedly recognized that, in certain circumstances, it is entirely appropriate for a district court to resolve that question as a matter of law, either because the similarity between two works concerns only non-copyrightable elements of the plaintiff’s work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar.” Gaito Architecture, 602 F.3d at 63 (internal quotation marks omitted) (quoting Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983)). “Thus, where, as here, the works in question are attached to a plaintiff’s complaint, it is entirely appropriate for the district court to consider the similarity between those works in connection with a motion to dismiss, because the court has before it all that is necessary in order to make such an evaluation.” Id. at 64. On such a motion to dismiss, see Fed. R. Civ. P. 12(b)(6), a Court may consider the documents or works incorporated in the complaint by reference, see McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007), and these works supersede contrary descriptions of them found in the compliant.THE TWO WORKSBucky’s 9thBucky ‘s 9th tells the story of Kenesaw “Bucky” Bucks a former star pitcher at Princeton University who dropped out of Princeton and fell into a degenerative life upon the unexpected suicidal death of his father, Orville “Thunder” Bucks, a former NFL quarterback. The novel begins with Bucky, after three years of alcoholism, meeting Willie Chance, a former teammate and friend of Thunder, who encourages Bucky to matriculate and play baseball for the Hill College for the Deaf, a small college located in the suburbs of Philadelphia. Willie had spent five years in prison in connection with a game-fixing scandal, and now coaches Hill’s baseball team, the Oaks.The college anticipates cutting the team’s funding and, at the behest of science professor Robert Goodnight (the nemesis in Bucky’s), building a science center on the site of the baseball field. To keep the team, president Elaine Miller tells Willie that he must turn around the Oaks and its dismal record. Fearing that funding for his job will soon cease, Willie seeks Bucky’s talent.Bucky, in turn, haunted by the legacy and death of his father, the details of which Bucky knows little about, agrees to play for Willie and Hill College, seeing it as an opportunity to learn from Willie about the death of his father. Thunder committed suicide on the day Willie was released from prison. To play for Hill — a college for deaf persons — Willie creates a fraudulent student identity for Bucky, Harold “Bucky” LaMar, and Bucky agrees to feign deafness and join the team.At Hill College, Bucky rooms with the initially hostile pitcher, Al Pagano, and finds himself isolated from the other deaf students and his teammates. Bucky finds companionship and begins a relationship with the school’s 24-year-old Assistant Dean of Students, Julie Ross. The relationship is marred by Bucky’s constant need to conceal his true identity as a hearing person in a college for the deaf.With Bucky on the team, the Oaks began to win and ultimately make it to the championship, with the players gaining respect for Bucky and confidence in themselves. Bucky’s teammates discover that he is not deaf, and Bucky has a strained relationship with some of the other players, especially the shortstop Tischler. The strife is ultimately settled when Bucky and Tischler together vandalize the field of their arch-rivals, Alice Deal.Bucky also speaks to Willie about his father’s death, who reveals that Thunder caused Willie’s imprisonment by leaking to a journalist the latter’s role in the game-fixing. Willie reveals that Bucky can make it up to him by helping Hill College win the championship.Bucky’s drama heightens when Professor Goodnight becomes aware of Bucky’s false identity and threatens to expose him before the Oaks are expected to play Alice Deal in the championship. Julie also learns of Bucky’s secret. Instead of attending the championship game, Bucky decides to reconcile with Julie and speak with her in her apartment. Julie feels betrayed but encourages Bucky to leave and do what is important to him — win the championship.Bucky arrives at the ninth inning of the championship game, with the Oaks down by one run, a man on first, and two outs. Bucky takes the plate, pinch hits, and racks up two strikes. The pitcher and catcher call a conference, disclosing that Bucky had vandalized Alice Deal’s field. The next pitch hits Bucky in the head and Bucky gets on base. Bucky’s walk is insufficient to win the game and the Oaks lose on the next play.Despite their loss, the Oak’s celebrate their achievements and a wealthy alumnus, inspired by the game, saves the team with a large donation. While Professor Goodnight speaks to President Miller about Bucky’s false identity, Miller reacts calmly and relates that there will be no consequences for either Willie or Bucky. Bucky’s ends with Bucky and Julie mending their relationship and starting a family together.The Art of FieldingThe Art of Fielding tells the story of Henry Skrimshander and his joining the baseball team of Westish College, a liberal arts college located on the western shore of Lake Michigan. TAOF is about Henry’s development in Westish from relative obscurity into a nationally recognized and recruited shortstop.TAOF begins with Mike Schwartz, a rising sophomore at Westish, who notices Henry playing baseball during Mike’s summer vacation. Impressed by Henry’s talent, Mike recruits Henry to play baseball at Westish and promises to be his guide and mentor. Henry, who at the time had no ambitions to attend college, agrees.At Westish, Henry shares a room with the amiable Owen Dunne, a gay black student who is also a member of Westish’s baseball team, the Harpooners. Mike trains Henry incessantly, and over the course of two years, helps Henry become the Harpooner’s star shortstop player, bringing the historically bad team consistent victories.Things take a turn for the worse, however, when Henry throws an errant ball into the dugout and badly injures Owen. Feeling guilty and losing his confidence, Henry falls into despair and becomes unable to successfully play shortstop. Mike, in turn, questions his own future after receiving consistent rejections on his applications to law school, becoming dependent on pain killers intended to treat knee pain.In the meantime, Guert Affenlight, the popular about-60-year-old bachelor and president of Westish, finds romantic interest in Owen, and the two soon begin a homosexual relationship, meeting daily, on and off campus. Further, Guert’s daughter, Pella, has returned to Westish, deciding to separate from her husband (David), and to begin working and taking classes at Westish College. Mike and Pella begin a romantic relationship.Even though Henry slowly, and then ultimately and entirely, loses his ability to play baseball, the Harpooners continue to play well and eventually make it to the championship to be played in South Carolina. Henry, who had quit the team, is not expecting to play. Henry also engages romantically with Pella, creating a rift in Henry and Mike’s relationship. Professional baseball recruiters continue to pester Henry, further deepening his anxiety surrounding his baseball playing and talent.Soon before the championship game, Guert has a reckoning of his own when the college administration learns of his affair with Owen and presents him with an ultimatum to either resign or be exposed. Guert, who had bought a plane ticket to attend the championship game, meets with Henry, gives him the ticket, and encourages him to play.Henry arrives at the championship game, and while initially hiding, is noticed by Owen. Henry takes the position as the first base coach, but Mike and Owen learn that Guert has died of a heart attack (suspected as a suicide). Owen, crippled by this deadly fact, recoils and is unable to play. Bottom of the ninth, two outs, down by one and a man on first, Henry then pinch hits for Owen. Henry takes two strikes on identical sliders, and then encourages the pitcher to throw a high and tight pitch by standing back. The pitcher delivers a fastball and Henry leans into the ball, knowing he currently lacked the talent to hit it. Henry gets hit by the ball, takes a walk, and scores the game winning run.Back on campus, Pella, Mike, Henry, and Owen exhume Guert’s body and move it to Lake Michigan. Pella enrolls in fall semester classes, and Mike takes an assistant coaching job at Westish. Henry rejects an offer to play professionally and decides to play for Westish during his senior year.THE COMPLAINTThe Complaint alleges that between 1994 and 2008 Green created multiple iterations of Bucky’s and its precursors and submitted said works to various literary agents for potential publication. Complaint at
