Sturdza v. United Arab Emirates

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2001 Decided March 8, 2002
No. 00-7279
Elena Sturdza,
Appellant
v.
United Arab Emirates, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 98cv02051)
Nathan Lewin argued the cause for appellant. With him on
the briefs were Alyza D. Lewin and David T. Shapiro.
John A. King argued the cause and filed the brief for
appellees Angelos Demetriou & Associates and Angelos C.
Demetriou.
Haig V. Kalbian and Mary M. Baker were on the brief for
appellee The Government of the United Arab Emirates.
Before: Henderson and Tatel, Circuit Judges, and
Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Tatel.
Concurring opinion filed by Circuit Judge Henderson.
Tatel, Circuit Judge: This case involves a dispute between
two architects, one of whom, Elena Sturdza, accuses the
other, Angelos Demetriou, of stealing her design for the
United Arab Emirates' new embassy. In addition to suing
Demetriou and the UAE for copyright infringement, Sturdza
charges the UAE with breach of contract, as well as with
conspiracy to commit sex discrimination in violation of 42
U.S.C. s 1985, and Demetriou with several torts: conspiracy
to commit fraud, tortious interference with contract, and
intentional infliction of emotional distress. Concluding that
no reasonable jury could find Demetriou's design "substan-
tially similar" to Sturdza's, the district court granted sum-
mary judgment for Demetriou and the UAE on the copyright
infringement claim. The district court also dismissed Sturd-
za's breach of contract claim, concluding that District of
Columbia law bars such claims by architects who (like Sturd-
za) have no D.C. architecture license; her tort claims, finding
them preempted by the federal Copyright Act; and her
section 1985 claim, concluding that foreign governments are
not "persons" within the meaning of the statute. We agree
with the district court's section 1985 ruling, but have a
different view of Sturdza's other claims. Although differ-
ences between the two embassy designs could permit a
reasonable jury to conclude that Demetriou's design is not
"substantially similar" to Sturdza's, because we believe there
are sufficient similarities for the jury to reach the opposite
conclusion, we reverse the grant of summary judgment
of the copyright infringement claim. While
the district court may well be correct that D.C. law bars
Sturdza's breach of contract claim, we think the law suffi-
ciently uncertain to warrant certifying the issue to the D.C.
Court of Appeals. Finally, because Sturdza's tort claims are
qualitatively different from her copyright infringement claim
and therefore not preempted, we reverse the dismissal of
those claims.
I.
In 1993, the United Arab Emirates held a competition for
the architectural design of a new embassy and chancery
building that it planned to build in Washington, D.C. The
UAE provided competitors with a "Program Manual" detail-
ing requirements for various aspects of the design. Accord-
ing to the cover letter accompanying the Manual, the UAE
sought a "modern sophisticated multi-use facility expressing
the richness and variety of traditional Arab motifs." Letter
from Mohammed Al-Shaali, Ambassador, United Arab Emi-
rates, to Angelos Demetriou, President, Demetriou & Associ-
ates 1-2 (June 7, 1993).
Appellant Elena Sturdza submitted a design, as did appel-
lee Angelos Demetriou and his architecture firm, Demetriou
& Associates. A "jury" comprised of architects and civil
engineers judged the competition entries. First Am. Compl.
p 15; Adham Hamdan Decl. p 14. The UAE informed Sturd-
za that she had won.
Sturdza and the UAE then began contract negotiations,
exchanging eight contract proposals over the course of the
next two years. In late 1994, the UAE requested some
"minor changes" to the design and asked Sturdza to provide
multiple, bound copies for UAE officials. First Am. Compl.
p 23. Sturdza complied with both requests. A year later, the
UAE asked Sturdza to perform certain "geotechnical" engi-
neering services needed to commence construction. Id. p 25.
Complying with this request as well, Sturdza hired an engi-
neer and assisted him in addressing various technical issues.
The UAE asked Sturdza to defer billing for these services
because it was "about to sign the contract." Id. p 28. Ac-
cording to the UAE's Director of Public Relations, the UAE
and Sturdza had reached agreement on all issues by late
1995. In early 1996, the UAE made several changes to the
draft contract, sending Sturdza a "final draft incorporating all
the changes mandated by the Ambassador." Facsimile trans-
mission from John T. Szymkowicz, Attorney, Szymkowicz &
Buffington, to Elena Sturdza (June 7, 1996). Although Sturd-
za informed the UAE that she agreed to these changes, the
UAE ceased communicating with her, neither signing the
contract nor responding to her repeated attempts to make
contact.
In late 1997, Sturdza learned that the UAE had presented
an embassy design to the National Capital Planning Commis-
sion. Visiting the Commission and obtaining a copy of the
design, Sturdza discovered not only that it was Demetriou's,
but also that it differed from his 1993 competition entry and,
according to Sturdza, "copied and appropriated many of the
design features that had been the hallmark of her design."
First Am. Compl. p 47. The UAE eventually contracted with
Demetriou to use his revised design and began building its
embassy.
Sturdza filed suit in the United States District Court for
the District of Columbia against the UAE and Demetriou.
Her amended complaint raises four categories of claims rele-
vant to this appeal: (1) a copyright claim against the UAE
and Demetriou (Count Three); (2) breach of contract and
quantum meruit claims against the UAE (Counts One and
Two); (3) tort claims for conspiracy to commit fraud, tortious
interference with contract, and intentional infliction of emo-
tional distress against Demetriou (Counts Five, Six, and
Seven); and (4) a claim for conspiracy to commit sex discrimi-
nation in violation of 42 U.S.C. s 1985 against the UAE
(Count Eight). The district court granted summary judg-
ment against Sturdza on her copyright infringement, breach
of contract, and quantum meruit claims, and dismissed under
Federal Rule of Civil Procedure 12(b)(6) her conspiracy to
commit fraud, tortious interference with contract, intentional
infliction of emotional distress, and section 1985 claims. See
Sturdza v. United Arab Emirates, No. 98-2051, slip op. at 7-9
(D.D.C. July 22, 1999) (tort claims); Sturdza v. United Arab
Emirates, No. 98-2051, slip op. at 11, 14 (Dec. 22, 1999)
(breach of contract, quantum meruit, and section 1985 claims);
Sturdza v. United Arab Emirates, No. 98-2051, slip op. at 15
(Oct. 30, 2000) (copyright claim). Sturdza appeals. Our
review is de novo. Wilson v. Pena, 79 F.3d 154, 160 n.1 (D.C.
Cir. 1996) ("Our standard of review under Federal Rules
12(b)(6) and 56 is the same: de novo.").
II.
We begin with a threshold issue. Claiming that certain
filings by Sturdza and her appellate counsel have inflicted
"irreparable prejudice," "tainted the record before this
Court," and improperly portrayed them as "villains," the
UAE and Demetriou moved to dismiss this appeal pursuant
to D.C. Circuit Rule 38. Appellees' Mot. to Dismiss Appeal
at 8-10. Under Rule 38, we may impose sanctions, including
dismissal,
[w]hen any party to a proceeding before this court or any
attorney practicing before this court fails to comply with
the FRAP or these rules, or takes an appeal or files a
petition or motion that is frivolous or interposed for an
improper purpose, such as to harass or to cause unneces-
sary delay[.]
D.C. Cir. R. 38. We deferred ruling on the motion to dismiss
until after oral argument. We now deny the motion.
The filings about which the UAE and Demetriou complain
began after Sturdza's appellate counsel, Nathan Lewin, sub-
mitted his opening brief. In several pro se motions and other
documents, Sturdza accused Lewin of failing to follow her
directions and sought to bring to our attention her own view
of Demetriou's and the UAE's conduct. In one motion,
Sturdza attempted to add "critical information" to her appel-
late brief that she said was "either missing or false." Appel-
lant's Pro Se Mot. to File Corrections at 1. Denying that
motion, we reminded Sturdza that "[a]ppellant has counsel
whom she has retained and thus is her representative in this
appeal.... So long as appellant is represented by counsel,
the attorney speaks on her behalf before this court." Order
of the United States Court of Appeals for the District of
Columbia Circuit at 1 (Aug. 29, 2001) (No. 00-7279).
Undeterred, Sturdza made additional pro se filings accus-
ing Lewin of failing to represent her properly. For example,
in a "motion for reconsideration," she charged that Lewin
"intentionally delayed submissions for [her] review ... to
deprive her of adequate time to act," reiterating that her
appellate brief contains "false statements, misleading state-
ments and omissions [of] important facts." Appellant's Pro
Se Mot. for Recons. at 2.
Lewin filed several affidavits in which he denied Sturdza's
accusations and described his efforts to consult with Sturdza
regarding her appeal. Lewin also submitted copies of corre-
spondence illustrating his efforts to communicate with Sturd-
za. In one such letter, Lewin explained that "based on [his]
professional judgment and experience," he decided to omit
certain material from the appellate brief, namely, "poor legal
arguments, unsubstantiated factual allegations and other ma-
terial that was not suitable for the brief and would have
reduced its persuasiveness[.]" Letter from Nathan Lewin,
Attorney, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, to
Elena Sturdza 2-3 (Sept. 7, 2001). Lewin attached to his
reply brief a copy of Sturdza's handwritten account of the
merits of her case--a document containing numerous strongly
worded allegations against Demetriou and the UAE, her
district court counsel (not Lewin), and the district court
judge. See Appellant's Reply Br. Addendum at 8-9 (stating
among other things that the appellees engaged in a "planned
theft" of Sturdza's design and that the UAE had "exercise[d]
its power over [Sturdza's trial] counsel and the U.S. judge").
Explaining why he included this material, Lewin stated, "I do
not wish to be a barrier to Ms. Sturdza's effort to be heard
individually--even on matters that I personally believe are
baseless or do not warrant presentation to the Court." Lew-
in Aff. (Oct. 1, 2001) p 10. Finally, Lewin expressed his
opinion that the pressures created by this litigation had
affected Sturdza psychologically and led to her pro se filings,
to which Sturdza responded: "[M]y emotional instability, if
any, is caused by the distress inflicted by all the defendants
... and by the mystery in which my counsel has deepened
me." Sturdza Aff. (Sept. 21, 2001) p 7.
In our view, these filings fall far short of Rule 38 sanctiona-
ble behavior. To begin with, the UAE's and Demetriou's
suggestion that our view of this case could be influenced by
either Sturdza's pro se filings or Lewin's explanations is
preposterous. This court is not a jury requiring protection
from wayward comments. Moreover, none of the circum-
stances that have led us to impose Rule 38 sanctions exist
here. While we advised Sturdza that only counsel spoke for
her so long as she was represented, neither she nor Lewin
violated an express court order. Cf., e.g., CNPQ Conseiho
Nacional de Desenvolvimiento Cientifico e Technologico v.
Fontes, No. 95-7067, 1996 WL 680208, at *1 (D.C. Cir. Oct. 4,
1996), clarified on reh'g, id. (Dec. 12, 1996) (dismissing appeal
under Rule 38 in part because appellant refused to comply
with court directive to file response to order to show cause).
Nor have the UAE and Demetriou offered any grounds to
conclude that Sturdza's pro se filings or Lewin's responses
were "frivolous or interposed for an improper purpose." D.C.
Cir. R. 38; cf., e.g., Whitehead v. Metro Goldwyn Mayer
Studio, Inc., No. 00-7164, 2001 WL 135848, at *1 (D.C. Cir.
Jan. 19, 2001) (assessing attorneys' fees and costs where
appeal was "frivolous and appellees provide[d] evidence that
appellant's claims [we]re presented in bad faith"). To the
contrary, these filings merely represent a worried client's
misguided but not improperly motivated attempt to express
her concerns about her case, and her lawyer's responses.
Finally, the UAE and Demetriou allege no want of prosecu-
tion. Cf., e.g., Ray v. Reno, No. 96-5005, 1996 WL 761944, at
*1 (D.C. Cir. Dec. 26, 1996) (dismissing appeal for failure to
prosecute).
Not only does nothing in the challenged filings warrant
dismissal, but we believe Lewin proceeded with the utmost
propriety, delicately balancing his ethical obligations to his
client and his responsibilities as an officer of this court.
Lewin made clear to Sturdza that although she could dis-
charge him, so long as he remained counsel he "retained the
final and ultimate responsibility to determine the contents" of
the briefing. Lewin Aff. (Oct. 1, 2001) p 2. In doing so,
Lewin carefully explained to Sturdza why he thought the
additional arguments she wished to make were without merit
and why the material she wanted added to the Joint Appendix
should not be included. At the same time, to fully protect his
client's interests, Lewin made sure we were fully aware of her
position. This is precisely how appellate counsel should
behave; indeed, we expect all lawyers practicing in this court
to resist a client's desire to make "poor legal arguments" or
"unsubstantiated factual allegations." Letter from Nathan
Lewin, supra p. 6, at 2-3; see also D.C. R. Prof'l Conduct
3.1 ("A lawyer shall not bring or defend a proceeding, or
assert or controvert an issue therein, unless there is a basis
for doing so that is not frivolous...."); D.C. Cir. R. app. II
R. I (adopting D.C. Code of Professional Conduct). We thus
turn to the merits of this appeal.
III.
To prevail on a copyright claim, a plaintiff must prove both
ownership of a valid copyright and that the defendant copied
original or "protectible" aspects of the copyrighted work.
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348,
361 (1991). "Not all copying, however, is copyright infringe-
ment." Id. at 361. The plaintiff must show not only that the
defendant actually copied the plaintiff's work, but also that
the defendant's work is "substantially similar" to protectible
elements of the plaintiff's work. See, e.g., Boisson v. Banian,
Ltd., 273 F.3d 262, 267-68 (2d Cir. 2001); Concrete Mach. Co.
v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1st Cir.
1988); see generally 4 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright s 13.01[B], at 13-8 to 13-10 (2001)
(explaining that while few courts clearly differentiate between
actual copying and substantial similarity, both are clearly
required, and the latter inquiry concerns whether actual
copying is legally actionable). In their motions for summary
judgment, the UAE and Demetriou disputed neither Sturd-
za's ownership of a valid copyright nor that Demetriou actual-
ly copied Sturdza's design. Instead they argued, as they do
here, that Sturdza cannot prove substantial similarity.
The substantial similarity inquiry consists of two steps.
The first requires identifying which aspects of the artist's
work, if any, are protectible by copyright. "[N]o author may
copyright facts or ideas. The copyright is limited to those
aspects of the work--termed 'expression'--that display the
stamp of the author's originality." Feist Publ'ns, 499 U.S. at
350 (internal quotation marks and citation omitted) (alteration
in original); see also 17 U.S.C. s 102(b) ("In no case does
copyright protection for an original work of authorship extend
to any idea, procedure, process, system, method of operation,
concept, principle, or discovery...."). Using Shakespeare as
an example, Judge Learned Hand explained the distinction
between protectible expression and unprotectible ideas:
If Twelfth Night were copyrighted, it is quite possible
that a second comer might so closely imitate Sir Toby
Belch or Malvolio as to infringe, but it would not be
enough that for one of his characters he cast a riotous
knight who kept wassail to the discomfort of the house-
hold, or a vain and foppish steward who became amorous
of his mistress. These would be no more than Shake-
speare's "ideas" in the play, as little capable of monopoly
as Einstein's Doctrine of Relativity, or Darwin's theory
of the Origin of Species.
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.
1930); see also, e.g., Country Kids 'N City Slicks, Inc. v.
Sheen, 77 F.3d 1280, 1286 (10th Cir. 1996) (holding that
"wooden form of the traditional paper doll" is idea not
expression). "[N]o principle," Judge Hand said, "can be
stated as to when an imitator has gone beyond copying the
'idea,' and has borrowed its 'expression.' Decisions must
therefore inevitably be ad hoc." Peter Pan Fabrics, Inc. v.
Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).
Also relevant to this case, copyright protection does not
extend to what are known as scEnes A faire, i.e., "incidents,
characters or settings which are as a practical matter indis-
pensable, or at least standard, in the treatment of a given
topic," Atari, Inc. v. North Am. Philips Consumer Elecs.
Corp., 672 F.2d 607, 616 (7th Cir. 1982) (internal quotation
marks and citation omitted), or elements that are "dictated by
external factors such as particular business practices," Com-
puter Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220
F.3d 396, 401 (5th Cir. 2000). For example, because "[f]oot
chases and the morale problems of policemen, not to mention
the familiar figure of the Irish cop, are venerable and often-
recurring themes of police fiction[,] ... they are not copy-
rightable." Walker v. Time Life Films, Inc., 784 F.2d 44, 50
(2d Cir. 1986); see also Computer Mgmt., 220 F.3d at 401(holding that computer program features dictated by "com-
puter manufacturer design standards" were scEnes A faire).
Once unprotectible elements such as ideas and scEnes A
faire are excluded, the next step of the inquiry involves
determining whether the allegedly infringing work is "sub-
stantially similar" to protectible elements of the artist's work.
"Substantial similarity" exists where "the accused work is so
similar to the plaintiff's work that an ordinary reasonable
person would conclude that the defendant unlawfully approp-
riated the plaintiff's protectible expression by taking material
of substance and value." Country Kids, 77 F.3d at 1288
(internal quotation marks and citation omitted). Substantial
similarity turns on the perception of the "ordinary reasonable
person" or "ordinary observer," id. As the Second Circuit
explained:
[t]he plaintiff's legally protected interest is ... his inter-
est in the potential financial returns from his [work]
which derive from the lay public's approbation of his
efforts. The question, therefore, is whether defendant
took from plaintiff's works so much of what is pleasing to
the ... lay ... audience ... that defendant wrongfully
appropriated something which belongs to the plaintiff.
Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir. 1946).
The substantial similarity determination requires compari-
son not only of the two works' individual elements in isolation,
but also of their "overall look and feel." Boisson, 273 F.3d at
272 (internal quotation marks and citation omitted). "[A]n
allegedly infringing work is considered substantially similar
to a copyrighted work if the ordinary observer, unless he set
out to detect the disparities, would be disposed to overlook
them, and regard their aesthetic appeal as the same." Id.(internal quotation marks and citation omitted). Put another
way, "[t]he touchstone of the analysis is the overall similari-
ties rather than the minute differences between the two
works." Country Kids, 77 F.3d at 1288 (internal quotation
marks and citation omitted). Considering the works as a
whole is particularly important because protectible expression
may arise through the ways in which artists combine even
unprotectible elements. For example, while color is not
protectible, the manner in which an artist "select[s], coordi-
nate[s], and arrange[s]," color may be. Boisson, 273 F.3d at
272; see also Matthews, 157 F.3d at 28 (observing that a
"collage of newspaper headlines," not themselves protectible,
if "juxtaposed in some highly creative and original fashion"
could constitute protectible expression).
Finally, and of particular importance to this case, "[b]e-
cause substantial similarity is customarily an extremely close
question of fact, summary judgment has traditionally been
frowned upon in copyright litigation." A.A. Hoehling v.
Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir. 1980);
see also Wickham v. Knoxville Int'l Energy Exposition, Inc.,
739 F.2d 1094, 1097 (6th Cir. 1984) ("[S]ummary judgment
... is a practice to be used sparingly in copyright infringe-
ment cases."). Of course, summary judgment for a copyright
defendant remains appropriate if the works are so dissimilar
as to protectible elements that no reasonable jury could find
for the plaintiff on the question of substantial similarity. See
Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994) (setting forth
general summary judgment rule); Williams v. Crichton, 84
F.3d 581, 589 (2d Cir. 1996) (affirming grant of summary
judgment for copyright defendant because "any similarity in
the theme of the parties' works relates to the unprotectible
idea of a dinosaur zoo," and "[o]nce one goes beyond this level
of abstraction, the similarity in themes disappears").
In assessing whether Sturdza's claim of substantial similar-
ity presents a genuine issue of material fact, the district court
first eliminated from consideration those elements of Deme-
triou's 1997 design that were present in his 1993 competition
submission. These include the building's overall volume,
backyard garden, and atrium. See Sturdza, No. 98-2051, slip
op. at 11 (Oct. 30, 2000) (listing elements). The district court
excluded these features because Sturdza's amended complaint
alleges that Demetriou copied her design after preparing his
original, 1993 competition entry. Because Sturdza does not
challenge this aspect of the summary judgment decision, we
too will exclude these elements of Demetriou's 1997 design
from our consideration.
The district court next "filter[ed] out" those elements of
Sturdza's design it viewed as unprotectible ideas: "domes,
wind-towers, parapets, arches, and Islamic patterns." Id. at
6, 12. According to the district court, Sturdza's expression of
these elements, but not her use of them, is protectible. We
agree with this aspect of the district court's decision. In and
of themselves, domes, wind-towers, parapets, and arches rep-
resent ideas, not expression. Cf. Wickham, 739 F.2d at 1097(holding that tower structure is idea not copyrightable ex-
pression); Ale House Mgmt., Inc. v. Raleigh Ale House, Inc.,
205 F.3d 137, 143 (4th Cir. 2000) (holding that island or
peninsula-shaped bar bisecting seating area with booths on
one side and stool seating on other "is nothing more than a
concept"). Indeed, to hold otherwise would render basic
architectural elements unavailable to architects generally,
thus running afoul of the very purpose of the idea/expression
distinction: promoting incentives for authors to produce origi-
nal work while protecting society's interest in the free flow of
ideas. See Feist Publ'ns, 499 U.S. at 349-50. We also agree
that "Islamic" patterns are not protectible, though we would
characterize them as scEnes A faire dictated by the UAE's
desire that the building "express[ ] the richness and variety of
traditional Arab motifs." Particular shapes such as diamonds
or circles that comprise a given pattern, however, do consti-
tute ideas.
Proceeding item by item, the district court then meticulous-
ly compared how the concepts of domes, wind-towers, para-
pets, arches, and decorative patterns (referred to by the
district court as "Islamic" patterns) are expressed in the two
designs. "[A]t the level of protectable expression," the dis-
trict court concluded, "the designs are decidedly different."
Sturdza, No. 98-2051, slip op. at 13 (Oct. 30, 2000).
Here we part company with the district court. Although
we agree that Demetriou's design differs from Sturdza's, we
think the district court overlooked several important respects
in which Demetriou's design expresses particular architectur-
al concepts quite similarly to Sturdza's. We also see signifi-
cant similarities in the "overall look and feel" of the two
designs. To help explain these two points, we attach as
appendices to this opinion selected "elevations," i.e., views, of
Sturdza's and Demetriou's designs. Appendices A and B
show front and side elevations of Sturdza's design. Appendi-
ces C and D show front and side elevations of Demetiou's
1997 design.
We begin with the ways in which Demetriou's expression of
architectural concepts mirrors Sturdza's. Consider the
domes. Although we agree that Demetriou's dome differs
from Sturdza's in some respects--Demetriou's is opaque and
positioned toward the front of the building, while Sturdza's
rises directly over the building's central section and is made
of "glass[,] ... allowing light in through the pattern," Pl.'s
Suppl. Answer to Def. Demetriou's Interrogs. at 4--in other
respects Demetriou's dome appears quite similar. Viewed
from the front, both domes appear to rise from the center and
toward the front of the buildings. Both domes rise to essen-
tially the same height, correspond in width to the buildings'
midsections, and taper gently upward to a point. Although
the domes have different decorative patterns, the patterns
create a similar effect. Sturdza encircles her dome with
three bands of pointed arches, largest at the dome's base and
becoming progressively smaller toward its top. Her arches'
decreasing size and pointed shape create a feeling of upward
movement from the dome's base toward its top. Demetriou
creates a similar effect by covering his dome with diamonds
whose upper points correspond to Sturdza's pointed arches
and that (like Sturdza's arches) become progressively smaller
toward the top of the dome. Finally, Sturdza gives her dome
a ribbed effect by raising the edges of the arches above the
dome's surface; Demetriou creates a similar effect by accent-
ing his diamonds' edges.
Like the domes, Demetriou's wind-towers differ in some
respects from Sturdza's: Sturdza's are three-dimensional,
emerge from the building's roof, and are decorated with
diamond patterning; Demetriou's are essentially two-
dimensional extensions of the building's front facade and are
decorated with three vertical bands. Viewed from the front,
however, the wind-towers appear quite similar in terms of
size and placement. Indeed, because the wind-towers are
essentially the same height and width and rise on either side
of the domes, they create extremely similar building contours.
Moreover, by placing diamonds atop the three vertical bands,
Demetriou creates a decorative effect similar to Sturdza's.
We agree with the district court that the parapets, which
run along the length of each building's upper perimeter, have
different decorative patterns: carved-out diamonds (Sturd-
za's) as compared to vertical notches (Demetriou's). In other
respects, however, the parapets seem quite similar. Like
Sturdza's design, Demetriou's incorporates narrow vertical
columns that rise from the ground to just above the parapet's
upper edge, subdividing the parapet and marking it with
regularly spaced protrusions (the columns' tips). In addition,
both parapets rise to a greater height over the buildings'
midsections (just beneath the domes, when viewed from the
front). In combination, these characteristics give Deme-
triou's parapet a similar look and feel to Sturdza's and
contribute to the marked similarity of the two buildings'
contours.
Demetriou's arches, as the district court pointed out, differ
in important ways from Sturdza's: Demetriou's are wide and
low, appear on the ground level only, and have interiors
decorated with latticework comprised of shapes somewhere
between circles and diamonds; Sturdza's are high and nar-
row, appear on both the ground and third-floor levels, and
have interiors decorated with latticework comprised of dia-
mond shapes. Yet even with these differences, Demetriou
uses arches to create an effect similar to the effect created by
Sturdza's arches. The portals of both buildings consist of
large arches flanked on either side by smaller ones. This,
together with the fact that the arches in both designs are
pointed, creates a similar, pyramid-like cluster of arches at
the centers of the buildings. Demetriou's latticework pat-
terning adds to the similar feel. In both designs, the lattice-
work consists of a web of small shapes surrounding larger,
more open shapes at the center of each arch. Sturdza
creates this effect by placing a few open diamonds at the
center of her arches, surrounding them with diamonds bisect-
ed with vertical and horizontal lines. Demetriou creates a
similar effect by placing a large, open, circular shape at the
center of each arch, surrounded by smaller, circular shapes.
The final concept--decorative patterning that covers the
facades of the two buildings--is the idea Demetriou expresses
most differently. As the district court pointed out, Deme-
triou's patterning has sixteen-sided stars on the upper levels
and shapes somewhere between a circle and a diamond on the
ground level; Sturdza's has diamond shapes throughout.
Demetriou also uses significantly less patterning overall than
Sturdza, who covers the entire facade of her building with
decoration. Even with these differences, however, we see a
significant similarity: like Sturdza, Demetriou covers his
building's facade with a grid of diamonds that creates a
diamond motif and emphasizes the facade's division into hori-
zontal and vertical planes.
Moving on to our second basis for questioning the district
court's conclusion that the designs are "decidedly different,"
id. at 13, we see no indication that, in addition to comparing
the ways in which the two architects express individual
concepts, the district court considered the two buildings'
"overall look and feel." Boisson, 273 F.3d at 272. Examin-
ing the two designs ourselves, we are struck by the significant
extent to which Demetriou's design resembles Sturdza's.
The size, shape, and placement of Demetriou's wind-towers,
parapets, and pointed domes, when viewed from the front,
give his building a contour virtually identical to Sturdza's.
Contributing to the similarity in overall look and feel, both
buildings have a pyramid-like clustering of pointed arches
around the front entrances, prominent horizontal bands and
vertical columns demarcating the windows, slightly protrud-
ing midsections, diamond grids, and similar latticework pat-
terning inside the arches. Finally, Demetriou achieves the
"Islamic" effect sought by the UAE by expressing and com-
bining his wind-towers, arches, dome, parapet, and decorative
patterning in ways quite similar to Sturdza's expression and
combination of these elements.
To sum up, we think Demetriou's design, though different
in some ways from Sturdza's (as the district court thought), is
sufficiently similar with respect to both individual elements
and overall look and feel for a reasonable jury to conclude
that the two are substantially similar. Unless the jury "set
out to detect the disparities" between the two works, it might
well "be disposed to overlook them, and regard their aesthetic
appeal as the same." Boisson, 273 F.3d at 272 (internal
quotation marks and citation omitted). Because Sturdza's
copyright claim presents an extremely close question, and
because "summary judgment has traditionally been frowned
upon in copyright litigation," A.A. Hoehling, 618 F.2d at 977,
we will reverse the grant of summary judgment.
We conclude with some observations about two evidentiary
issues which, though we had no need to resolve at this stage
of the proceedings, may well arise on remand. One concerns
the differences between Demetriou's 1997 design and his 1993
competition entry (Appendix E). His original design has a
distinctly boxy, modern office building look, round dome, little
decoration, and no wind-towers, arches, or parapet. Much
less boxy and modern, Demetriou's revised design, like Sturd-
za's, incorporates arches, wind-towers, a parapet, a pointed
dome, and considerably more decorative patterning. Accord-
ing to Sturdza, these changes support her claim of substantial
similarity. Demetriou and the UAE claim the changes relate
only to the question of actual copying.
The other evidentiary issue concerns the use of expert
evidence. In opposition to Demetriou's motion for summary
judgment, Sturdza offered two expert declarations--one from
a professor of Islamic art and architecture and another from
a practicing architect. Demetriou moved to exclude these
declarations as irrelevant to the question of substantial simi-
larity. Declining to rule on the declarations' admissibility,
the district court disregarded them as "conclusory and unin-
formative." Sturdza, No. 98-2051, slip op. at 6 n.4 (Oct. 30,
2000). On appeal, Sturdza insists that the declarations are
relevant.
These evidentiary issues are complex and novel. Begin-
ning with the first, although Demetriou and the UAE concede
that the changes are clearly relevant to the question of actual
copying, we are not at all sure why the changes in Deme-
triou's design support Sturdza's claim of substantial similari-
ty: the question is whether Demetriou's end product (his
revised design) is substantially similar to Sturdza's, not how it
got that way. At oral argument, however, Sturdza's counsel
theorized that the two versions could inform the jury about
the "range of possibilities" available to Demetriou and there-
by help the jury resolve the substantial similarity issue. Tr.
of Oral Arg. at 54. Unfortunately, neither party identifies
any authority on this intriguing question, nor have we found
any ourselves.
By contrast, the use of expert testimony in copyright cases
has received widespread judicial attention. Until recently,
expert evidence was permitted only to help juries determine
"whether ... the alleged infringer used the copyrighted work
in making his own" (actual copying), not to determine "wheth-
er ... the copying was ... an unlawful appropriation" (sub-
stantial similarity). Whelan Assocs. v. Jaslow Dental Lab.,
Inc., 797 F.2d 1222, 1232 (3d Cir. 1986) (internal quotation
marks and citation omitted); see also Arnstein, 154 F.2d at
468 (setting forth traditional rule proscribing expert evidence
at "unlawful appropriation" step). A growing number of
courts now permit expert testimony regarding substantial
similarity in cases involving computer programs, reasoning
that such testimony is needed due to the "complexity and
unfamiliarity [of computer programs] to most members of the
public." Whelan, 797 F.2d at 1232; see also Computer
Assocs., Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 713-14 (2d Cir.
1992) (permitting expert evidence on substantial similarity in
computer program infringement case); Fed. R. Evid. 702
(stating that expert evidence is admissible when "scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in
issue"). The Fourth Circuit has held that this more flexible
approach to expert evidence could apply to a highly special-
ized musical arrangement. See Dawson v. Hinshaw Music
Inc., 905 F.2d 731, 736-38 (4th Cir. 1990) (remanding to the
district court to determine if the audience for a spiritual
composition was sufficiently specialized--and the lay audience
therefore sufficiently unfamiliar with such works--to warrant
expert evidence on the substantial similarity question). Nei-
ther we nor any other circuit, however, has considered wheth-
er expert evidence is admissible to show substantial similarity
of architectural works, nor has any circuit other than the
Fourth approved the use of such evidence outside the com-
puter program context. Cf. Computer Assocs., 982 F.2d at
713-14 ("[W]e do not intend to disturb the traditional role of
lay observers in judging substantial similarity in copyright
cases that involve the aesthetic arts, such as music, visual
works or literature.").
In addition to their novelty, these two issues share another
common characteristic: though raised, they are virtually un-
briefed. Because of this, and because of the importance of
both issues to copyright law, we think it best to allow the
parties to develop them under the capable direction of the
district court. If necessary, we can revisit either or both
issues in a subsequent appeal, with the benefit of full briefing.
IV.
We turn next to Sturdza's breach of contract and quantum
meruit claims. In Count One of the amended complaint,
Sturdza alleges that the UAE breached its contract by "inten-
tionally failing to memorialize the final contract ... concern-
ing which substantial performance had already commenced;
... awarding the contract for the design and construction of
the Embassy to ... Demetriou ... while simultaneously
holding itself out to be engaged in a good faith agreement
with ... [Sturdza]; and ... failing to pay [Sturdza] her fee
or any portion thereof, including ... for work specifically
requested of her by ... [the] UAE." First Am. Compl. p 60.
Count Two seeks quantum meruit recovery for Sturdza's
preparation of the Embassy design as well as for services
performed after being declared the competition winner. See
id. p p 63-64. The district court granted summary judgment
for the UAE, concluding that D.C. law bars Sturdza from
obtaining contractual or quasi-contractual recovery because
she had no license to practice architecture in the District
either at the time she contracted with the UAE or when she
performed the services for which she seeks compensation.
The UAE argues that we may affirm on either of two
alternative grounds. First, it claims that because it did not
execute a written agreement, it never formed a contract with
Sturdza. The D.C. Court of Appeals, however, has squarely
held that although "[m]utual assent to a contract ... is most
clearly evidenced by the terms of a signed written agreement,
... such a signed writing is not essential to the formation of a
contract." Davis v. Winfield, 664 A.2d 836, 837 (D.C. 1995).
Second, echoing the district court, the UAE argues that
D.C. licensing law bars Sturdza from obtaining the recovery
she seeks. The D.C. Code provides that "no unlicensed
person shall engage, directly or indirectly, in the practice of
architecture in the District." D.C. Code s 47-2853.63 (2001)
(formerly codified at D.C. Code s 2-261 (1981)). The "prac-
tice of architecture" means "rendering or offering to render
services in connection with the design and construction, en-
largement, or alteration of a structure.... [including] plan-
ning and providing studies, designs, drawings, specifications,
and other technical submissions, and the administration of
construction contracts." D.C. Code s 47-2853.61 (2001) (for-
merly codified at D.C. Code s 2-241 (1981)). The D.C. Court
of Appeals has held that "a contract made in violation of a
licensing statute that is designed to protect the public will
usually be considered void and unenforceable." Truitt v.
Miller, 407 A.2d 1073, 1079 (D.C. 1979). A person violating
such a statute may recover in neither contract nor quasi-
contract. See, e.g., Cevern v. Ferbish, 666 A.2d 17, 19-20
(D.C. 1995) (holding that home improvement contractor could
not recover in contract or quasi-contract where the contractor
accepted advance payment while unlicensed, in violation of
the home improvement licensing statute); Saul v. Rowan
Heating and Air Conditioning, Inc., 623 A.2d 619, 621-22
(D.C. 1993) (holding that air conditioning contractor could not
recover for services provided where the contractor was unli-
censed at the time he entered into contract and performed
work, in violation of the refrigeration/air conditioning services
licensing statute).
Sturdza argues that her failure to have a D.C. architecture
license does not bar her contract and quasi-contract claims.
According to Sturdza, her work falls within a statutory excep-
tion permitting unlicensed architects to "prepare technical
submissions or ... administ[er] ... construction contracts
under the direct supervision of an architect licensed in the
District." D.C. Code s 2-262(3) (1981) (repealed by Second
Omnibus Regulatory Reform Amendment Act of 1998 s 1235,
46 D.C. Reg. 3142, 3212). We disagree. Although Sturdza
apparently did collaborate to some extent with a D.C. archi-
tect, see Sturdza Aff. (Aug. 20, 1999) p 2 ("At all times
pertinent hereto, I was associated and worked with ... an
architect licensed in the District of Columbia...."), she never
alleges that she was under his direct supervision nor, accord-
ing to the amended complaint, was her work limited to
"technical submissions" or "administ[ering] ... construction
contracts." Sturdza next argues that she only seeks to
enforce a contract for future services and that she would have
obtained a D.C. license by the time she actually rendered
those services. This argument is equally without merit, for it
directly contradicts her allegation that while unlicensed she
"substantial[ly] perform[ed]" the contract upon which she
seeks to recover. First Am. Compl. p 60. Finally, Sturdza
argues that application of the D.C. licensing requirement
would violate the Foreign Missions Act, 22 U.S.C. s 4301.
Not only does she fail to tell us which provision of the statute
she thinks is implicated, but she relies on a case dealing with
an entirely different situation: the D.C. zoning board's effort
to prevent a foreign chancery from constructing a radio tower
for diplomatic communications. See Embassy of Benin v.
District of Columbia Bd. of Zoning Adjustment, 534 A.2d 310(D.C. 1987).
Returning to the licensing principles enunciated by the
D.C. Court of Appeals, we are inclined to agree with the
district court that D.C. law precludes Sturdza from obtaining
contractual or quasi-contractual recovery. Sturdza had no
D.C. license and, as her amended complaint concedes, she
went beyond submitting bids and actually performed architec-
tural services--in her own words, "substantial[ly] per-
form[ed]" the contract. First Am. Compl. p 60; cf., e.g., Saul,
623 A.2d at 620 (holding contractor barred from recovery
because he contracted and performed work without license).
That said, we are mindful that a "federal court ... should
normally decline to speculate on ... a question of local
doctrine." East v. Graphic Arts Indus. Joint Pension Trust,
107 F.3d 911, 911 (D.C. Cir. 1997) (quoting Delahanty v.
Hinckley, 845 F.2d 1069, 1070 (D.C. Cir. 1988)). Although
decades ago, the D.C. Court of Appeals held that an architect
who failed to comply with a then-existing license renewal
provision could not recover for services performed during the
period in which his license had lapsed, see Holiday Homes,
Inc. v. Briley, 122 A.2d 229, 231-32 (D.C. 1956), that court
has never expressly determined whether the provision at
issue here bars unlicensed architects from enforcing their
contracts or recovering in quantum meruit. Nor has the D.C.
Court of Appeals considered the implications (if any) of a
statutory exception that permits architects licensed elsewhere
to "agree to perform or represent that he or she is able to
perform any of the services involved in the practice of archi-
tecture, provided that the architect shall not perform any of
the services involved in the practice of architecture until
licensed under this act." D.C. Code s 2-262(6) (1981) (re-
pealed by Second Omnibus Regulatory Reform Amendment
Act of 1998 s 1235, 46 D.C. Reg. 3142, 3212). Although this
exception was repealed since the events at issue here, the
basic licensing framework for architects remains unchanged.
See D.C. Code s 47-2853.63 (2001) (prohibiting unlicensed
persons from engaging in practice of architecture in the
District).
We thus think the wisest course of action is to certify this
issue to the D.C. Court of Appeals. See D.C. Code
s 11-723(a) (2001) ("[A] Court of Appeals of the United
States" may certify "questions of law" to the D.C. Court of
Appeals when "it appears to the certifying court [that] there
is no controlling precedent in the decisions of the D.C. Court
of Appeals."). District of Columbia law is " 'genuinely uncer-
tain,' " Dial A Car, Inc. v. Transp., Inc., 132 F.3d 743, 746
(D.C. Cir. 1998) (quoting Tidler v. Eli Lilly & Co., 851 F.2d
418, 426 (D.C. Cir. 1988)), and this case presents a question of
" 'extreme public importance,' " id. at 746 (quoting Joy v. Bell
Helicopter Textron, Inc., 999 F.2d 549, 563-64 (D.C. Cir.
1993)). We assume that architects throughout the country
(perhaps even around the world) unlicensed to practice in the
District often submit bids to perform architectural services in
this city of embassies, monuments, and public buildings.
Precisely how D.C. law applies to this unique characteristic of
Washington, D.C. and its economy is a question best resolved
by the D.C. Courts. Accordingly, we will certify the following
question to the D.C. Court of Appeals:
Under District of Columbia law, is an architect barred
from recovering on a contract to perform architectural
services in the District or in quantum meruit for archi-
tectural services rendered in the District because the
architect began negotiating for the contract, entered into
the contract, and/or performed such services while li-
censed to practice architecture in another jurisdiction,
but not in the District?
V.
The district court dismissed Counts Five, Six, and Seven,
which allege that Demetriou conspired to commit fraud, tor-
tiously interfered with Sturdza's contract, and intentionally
inflicted emotional distress, on the ground that all three
claims are preempted under Section 301 of the Copyright Act.
That section provides:
[A]ll legal or equitable rights that are equivalent to any
of the exclusive rights within the general scope of copy-
right as defined by section 106 in works of authorship
that are fixed in a tangible medium of expression and
come within the subject matter of copyright as specified
by sections 102 and 103 ... are governed exclusively by
this title.... [N]o person is entitled to any such right
or equivalent right in any such work under the common
law or statutes of any State.
17 U.S.C. s 301(a). In "broadly pre-empting state statutory
and common-law copyright regulation," Cmty. for Creative
Non-Violence v. Reid, 490 U.S. 730, 740 (1989), Congress
sought to "enhanc[e] predictability and certainty of copyright
ownership," id. at 749, by establishing a "uniform method for
protecting and enforcing certain rights in intellectual proper-
ty," Daboub v. Gibbons, 42 F.3d 285, 288 (5th Cir. 1995).
That said, "[n]othing in ... [the Copyright Act] annuls or
limits any rights or remedies under the common laws or
statutes of any State with respect to ... [a work] that does
not come within the subject matter of copyright ... [or]
activities violating legal or equitable rights that are not
equivalent to any of the exclusive rights within the general
scope of copyright." 17 U.S.C. s 301(b)(1), (3). In other
words, preemption has both "subject matter" and "equivalen-
cy" requirements: the copyrighted work must be the type of
work protected by copyright law and the state law right must
be equivalent to a right protected by the Copyright Act. See
Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir.
2001).
Architectural designs unquestionably fall within the "sub-
ject matter" of copyright. Indeed, the Copyright Act ex-
pressly mentions "architectural works." See 17 U.S.C.
s 102(a)(8). Preemption in this case thus turns on whether
Counts Five, Six, and Seven assert state law rights "equiva-
lent" to rights protected by the Copyright Act, namely, the
"exclusive rights" of a copyright owner "to reproduce the
copyrighted work[,] ... to prepare derivative works[,] ... to
distribute copies ... of the copyrighted work to the public by
sale or other [means,] ... to perform the copyrighted work
publicly[,] ... [and] to display the copyrighted work publicly."
17 U.S.C. s 106. State law protects rights "equivalent" to an
"exclusive right[ ] within the general scope of copyright"
where the "state law may be abridged by an act which, in and
of itself, would infringe one of those exclusive rights." Har-
per & Row, Publishers, Inc. v. Nation Enters., 723 F.2d 195,
200 (2d Cir. 1983), rev'd on other grounds, 471 U.S. 539(1985). Put another way, "if an extra element is required
instead of or in addition to the acts of reproduction, perfor-
mance, distribution or display in order to constitute a state-
created cause of action, there is no preemption, provided that
the extra element changes the nature of the action so that it
is qualitatively different from a copyright infringement
claim." Wrench, 256 F.3d at 456. To determine whether a
state law claim is qualitatively different from a copyright
claim--that is, whether the state claim has an "extra ele-
ment"--courts generally examine both the elements of the
state law cause of action and the way the plaintiff has actually
pled that cause of action. See id. at 456-58 (explaining that
breach of contract claim is ordinarily not preempted because
it requires extra element of breach of promise to pay for
author's work, but preemption applies where plaintiff alleges
only breach of promise to refrain from reproducing, perform-
ing, distributing, or displaying work); Summit Mach. Tool
Mfg. Corp. v. Victor CNC Sys., Inc., 7 F.3d 1434, 1441-42 (9th
Cir. 1993) (observing that whether state law misappropriation
claim was preempted depended on facts alleged--e.g., claim
for misappropriation of time and labor expended in develop-
ing idea would be preempted, but claim for misappropriation
of fruits of plaintiff's labor by marketing plaintiff's product
under defendant's name would not). With these standards in
mind, we consider the three claims the district court found
preempted by copyright law.
Count Six, the intentional interference with contract claim,
alleges that Demetriou "had knowledge of the contract" be-
tween Sturdza and the UAE and "intentionally interfered"
with that contract. First Am. Compl. p p 85-86. Count Six
incorporates by reference Count One, which in turn alleges
that "[d]uring ... [the UAE's] negotiations with [Sturdza] in
connection with the performance of its agreement with ...
[her], ... [the] UAE entered into an architectural services
agreement with ... Demetriou ... without justification and
without notice to plaintiff[,]" and that the UAE breached its
agreement with Sturdza by among other things failing to
execute a final contract and awarding the contract to Deme-
triou. See id. p p 59-60. Under D.C. law, tortious interfer-
ence with contract has four elements: "(1) existence of a
contract, (2) knowledge of the contract, (3) intentional pro-
curement of its breach by the defendant, and (4) damages
resulting from the breach." Sorrells v. Garfinckel's, Brooks
Bros., Miller & Rhoads, Inc., 565 A.2d 285, 289 (D.C. 1989)
(internal quotation marks and citation omitted).
The district court would have been entirely correct had
Sturdza claimed only that Demetriou, by copying her design,
"intentional[ly] procur[ed] [the] breach," that is, caused the
UAE to cancel its contract with her. Such a claim would not
differ qualitatively from a copyright claim because both would
rest on Demetriou's unauthorized copying--"an act which in
and of itself would infringe on one of th[e] exclusive rights"
protected by the Copyright Act. Harper & Row, 723 F.2d at
200. Although tortious interference with contract claims are
typically found preempted for this very reason, see 1 Nimmer
& Nimmer, supra p. 9, s 1.01[B][1][a], at 1-17 to 1-19 and
n.73.1, a different result is warranted where the defendant
interferes with the plaintiff's contractual rights through con-
duct other than "reproduction[,] ... preparation[,] ... distri-
bution[,] ... performance[,] ... or display" of the copyright-
ed work, 17 U.S.C. s 106. This is just such a case. As pled,
the core of Sturdza's tortious interference with contract claim
is her allegation that Demetriou, knowing the UAE had
agreed to award the embassy contract to Sturdza, entered
into his own contract with the UAE to build the embassy.
True, Sturdza also alleges that the design Demetriou con-
tracted to use infringes hers. But Count Six does not rise or
fall on this allegation. Even if Demetriou's design were
entirely his own, Sturdza could proceed on her tortious
interference with contract claim based on her other allega-
tions. Because Sturdza's claim differs qualitatively from her
copyright infringement claim, it is not preempted.
Sturdza's intentional infliction of emotional distress claim,
Count Seven, alleges that Demetriou's "acts as alleged herein
were undertaken intentionally, beyond the bounds of all de-
cency and with reckless disregard of the consequences, i.e.,
injury to plaintiff, especially since defendants knew how many
years plaintiff had devoted to the Embassy project and how
important this project was to her." First Am. Compl. p 90.
Count Seven incorporates Sturdza's other allegations, includ-
ing Count Six (tortious interference with contract) and Count
One (breach of contract); the latter alleges that "[a]s a result
of defendant UAE's breach of contract, plaintiff has suffered
damages, including severe emotional distress." Id. p 61. In
the District of Columbia, intentional infliction of emotional
distress has three elements: "(1) extreme and outrageous
conduct on the part of the defendant which (2) intentionally or
recklessly (3) causes the plaintiff severe emotional distress."
Howard Univ. v. Best, 484 A.2d 958, 985 (D.C. 1984) (internal
quotation marks and citation omitted).
Had Sturdza alleged that Demetriou's "extreme and outra-
geous conduct" consisted solely of stealing her design, her
claim would be preempted, for the core of such a claim would
not differ qualitatively from a copyright infringement claim.
But by incorporating Counts One and Six into Count Seven
and expressly referencing infliction of emotional distress, the
amended complaint premises Sturdza's emotional distress
claim on the UAE's breach of contract and Demetriou's
procurement of that breach through conduct other than the
"reproduction[,] ... preparation[,] ... distribution[,] ... per-
formance[,] ... or display," 17 U.S.C. s 106, of her design.
Because Sturdza's intentional infliction of emotional distress
claim is thus qualitatively different from her copyright claim,
it is not preempted.
Count Five, the conspiracy to commit fraud claim, alleges
that Demetriou "engaged in a concerted pattern of activity in
furtherance of the scheme which was intended to and ulti-
mately did defraud plaintiff"--a scheme whereby the UAE
"intentionally and knowingly ... misrepresent[ed] [to Sturd-
za] ... that it had entered into a contract with her for the
construction of the Embassy." First Am. Compl. p p 81-83.
In the District of Columbia, "a cause of action for civil
conspiracy must allege the formation and operation of the
conspiracy, wrongful acts done in furtherance of the common
scheme, and damages suffered as a result." Higgs v. Higgs,
472 A.2d 875, 877 (D.C. 1984). "It is not necessary to aver
facts against an alleged conspirator that satisfy all of the
elements of fraud." Id.Like Counts Six and Seven, Count Five rests on more than
Demetriou's alleged unauthorized copying of Sturdza's design.
Because Count Five defines the fraudulent scheme in terms
of the UAE's misrepresentations regarding the status of its
contract with Sturdza, and because it incorporates the com-
plaint's other allegations, the count can be fairly read to
allege that Demetriou "further[ed] ... the [UAE's fraudu-
lent] scheme" by entering into his own negotiations and
contract with the UAE to design the embassy while knowing
all along that the UAE had contracted with Sturdza to
perform the very same work. Thus, Count Five is qualita-
tively different from Sturdza's copyright claim and not
preempted.
In reaching this latter conclusion, we express no opinion as
to whether the conspiracy to commit fraud claim could sur-
vive a motion for judgment on the pleadings. See Fed. R.
Civ. P. 12(c); see also Fed. R. Civ. P. 9(b) ("In all averments
of fraud ... the circumstances constituting fraud ... shall be
stated with particularity."); Hayduk v. Lanna, 775 F.2d 441,
443 (1st Cir. 1985) ("[I]n actions alleging conspiracy to de-
fraud or conceal, the particularity requirements of Rule 9(b)
must be met."). Demetriou neither made such a motion in
the district court nor presents the argument here.
We conclude with an observation about all three tort
claims. As Sturdza herself points out, the claims "depend[ ]
only on Demetriou's participation in UAE's breach of contract
and violation of the rights and expectations that Ms. Sturdza
had as a result of UAE's conduct towards her." Appellant's
Br. at 30; see also Deoudes v. G.B. Macke Corp., 153 A.2d
309, 310 (D.C. 1959) (holding that the "core" of a tortious
interference with contract claim "is that one who intentionally
induces another to break a valid contract is liable" (emphasis
added)). Accordingly, should the D.C. Court of Appeals
answer the certified question affirmatively, thus barring
Sturdza's contract claim against the UAE, the district court
will need to consider the implications of that decision for
Sturdza's ability to pursue her tort claims against Demetriou.
VI.
This brings us finally to the district court's Rule 12(b)(6)
dismissal of Count Eight, which alleges that the UAE, in
violation of 42 U.S.C. s 1985, "conspired to violate ... [Sturd-
za's] property and contract rights because ... [the] UAE did
not wish to have a female chief architect for the construction
of the Embassy." First Am. Compl. p 105. Section 1985
makes it unlawful for "two or more persons in any State ...
[to] conspire ... for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities
under the laws." 42 U.S.C. s 1985(3). The district court,
noting that the liability of a foreign sovereign under section
1985 is a novel issue--only one court has even discussed it,
see Rios v. Marshall, 530 F. Supp. 351, 372 n.22 (S.D.N.Y.
1981) (stating in dicta that foreign sovereigns are not "per-
sons" for purposes of federal civil rights statutes)--concluded
that such an entity is not a "person" within the meaning of
the statute.
Section 1985 contains no definition of "person." See 42
U.S.C. s 1985. The Dictionary Act defines "person" for
purposes of "determining the meaning of any Act of Con-
gress, unless the context indicates otherwise," as including
"corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as individuals." 1
U.S.C. s 1. The Act does not expressly mention foreign
sovereigns. See id. The Supreme Court, moreover, has
"repeatedly held that the word 'person' in a statute does not
include a sovereign government absent affirmative evidence
of such an inclusory intent." Al Fayed v. CIA, 229 F.3d 272,
274 (D.C. Cir. 2000) (citing cases). In addition to the statuto-
ry text, such evidence includes "the purpose, the subject
matter, the context, the legislative history, [or] the executive
interpretation of the statute." Int'l Primate Prot. League v.
Adm'rs of Tulane Educ. Fund, 500 U.S. 72, 83 (1991) (inter-
nal quotation marks and citation omitted) (alteration in origi-
nal); see also, e.g., Pfizer, Inc. v. Gov't of India, 434 U.S. 308,
313-20 (1978) (finding foreign government to be "person"
entitled to sue under Sherman Anti-Trust Act based on
evidence of Congressional intent that term have "broad ...
meaning" and that Act have "expansive remedial purpose").
Sturdza points to neither legislative history nor any other
evidence suggesting that Congress intended section 1985 to
cover foreign governments. Indeed, the Supreme Court has
held that a foreign government is not a " 'person' as that term
is used in s 1983," Breard v. Greene, 523 U.S. 371, 378 (1998),
and sections 1983 and 1985 are interpreted consistently with
each other, see Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir.
1979). Sturdza points out that the term "person" as used in
section 1985 and related provisions of the Civil Rights Act has
been interpreted to include municipalities, see, e.g., LeBlanc-
Sternberg v. Village of Airmont, 67 F.3d 412, 426-27 (2d Cir.
1995), but that is because "the legislative history of the Civil
Rights Act of 1871 compels the conclusion that Congress did
intend municipalities and other local government units to be
included among those persons to whom s 1983 applies,"
Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658,
690 (1978). For all of these reasons, we agree with the
district court that a foreign government is not a "person"
within the meaning of section 1985.
VII.
The motion to dismiss this appeal is denied. The grant of
summary judgment for Demetriou and the UAE on Sturdza's
copyright claim is reversed. The Rule 12(b)(6) dismissal of Counts Five,
Six, and Seven (the tort claims) as to Demetriou is also reversed. The
Rule 12(b)(6) dismissal of Sturdza's section 1985 claim is affirmed. The
question whether D.C. law bars Sturdza's contract and quan-
tum meruit claims is certified to the District of Columbia Court of Appeals,
and all further proceedings in this matter shall be held in abeyance
pending further order of this court.
So ordered.
Karen LeCraft Henderson, Circuit Judge, concurring:
I concur in the majority's holding that the question of
substantial similarity under the Copyright Act must be sub-
mitted to the jury--but do so only reluctantly. I believe, as
did the district court, that, when properly compared, Deme-
triou's final design and Sturdza's contest design are not
substantially similar. By properly compared I mean without
regard to Demtriou's 1993 contest submission (the appear-
ance of which cannot possibly be relevant to whether the two
designs compared here are substantially similar to each oth-
er) and with due regard for the prevalence in both designs of
the unprotectible commonplaces of Islamic architecture iden-
tified by the district court, namely, "domes, wind-towers,
parapets, arches, and Islamic patterns." Sturdza v. United
Arab Emirates, No. 98-2051, slip op. at 12. Viewed in this
light, the two designs are more notable for their differences
than for their similarities; the expression in each of the
common unprotectible ideas is, as the district court described
it, "decidedly different." Id. at 13-15. Nevertheless, given
the degree of subjectivity inherent in assessing substantial
similarity, I cannot say, as a matter of law, that no reasonable
juror could find the two designs are substantially similar.
Accordingly, I join in the majority's disposition of the Copy-
right Act claim as I do in its resolution of the other issues
raised.
Appendices A through E not available electronically.