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 and

remand for trial 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 and remand

for trial.

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 and this case is remanded for

trial. The Rule 12(b)(6) dismissal of Counts Five, Six, and

Seven (the tort claims) as to Demetriou is also reversed. The

question whether D.C. law bars Sturdza's contract and quan-

tum meruit claims is certified to the D.C. Court of Appeals.

The Rule 12(b)(6) dismissal of Sturdza's section 1985 claim is

affirmed.

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.