concurring:
I concur in the majority’s holding that the question of substantial similarity under the Copyright Act must be submitted to the jury — but do so only reluctantly. I believe, as did the district court, that, when properly compared, Demetriou’s final design and Sturdza’s contest design are not substantially similar. By properly compared I mean without regard to Deme-triou’s 1993 contest submission (the appearance of which cannot possibly be relevant to whether the two designs compared here are substantially similar to each other) and with due regard for the prevalence in both designs of the unprotectible commonplaces of Islamic architecture identified 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 Copyright Act claim as I do in its resolution of the other issues raised.
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