United States: French Picasso Judgment Is Abstract Expression To U.S. Law

Last week, Sheppard Mullin partner Neil Popović (SF) secured summary judgment against recognition of a €2 million ($2.2 million) French judgment against art editor Alan Wofsy and Wofsy's company Alan Wofsy & Associates.

The dispute centers around photographs of the works of Pablo Picasso. In the early 1900s, Christian Zervos, working directly with Picasso, compiled some 16,000 photographs of Picasso's work in a multi-volume collection that became known as the Zervos Catalogue. The first volume of the Zervos Catalogue was published in 1932. Yves Sicre de Fontbrune, a French citizen, later acquired the rights to the Zervos Catalogue.

In 1995, American art editor Alan Wofsy, having obtained permission from the Picasso estate to reproduce the master's works, began publishing a new collection entitled The Picasso Project, which included some photographs that had appeared in the Zervos Catalogue. In response, de Fontbrune brought a copyright infringement suit against Wofsy in France. A series of disputes between the parties led to a 2001 judgment in France, in which a French court of appeals (reversing the factual findings of a lower court) found The Picasso Project infringed the copyrights to several photographs in the Zervos Catalogue. The judgment prohibited Wofsy from using the photographs at issue and imposed an "astreinte" of 10,000 francs (approximately $1,680) for each future use of the prohibited works.

When copies of The Picasso Project were found in a French bookstore almost a decade later, de Fontbrune brought a new lawsuit to enforce the previously issued astreinte. With no appearance by Wofsy—who had not been served—de Fontbrune convinced the French judge to liquidate the astreinte, resulting in a 2012 judgment against Wofsy for €2 million ($2.2 million), payable to de Fontbrune.

In an effort to enforce the 2012 French judgment, de Fontbrune brought suit against Wofsy in California under California's Uniform Foreign-Country Money Judgments Recognition Act. California's Recognition Act, like the analogous statutes in most U.S. states, provides that a local court is not required to recognize a foreign judgment that is repugnant to the public policy of the state or the United States. Noting that "[t]he court is mindful of concerns over comity between French and U.S. courts," U.S. District Court Judge Edward Davila (N.D. Cal.) nevertheless concluded that Wofsy "carried [his] burden of showing there [was] no genuine issue of material fact that the 2012 Judgment is repugnant to U.S. public policy."

Despite the "high bar" that California courts have set for repugnancy, Popović successfully argued that the French judgment contravenes fundamental U.S. public policy that favors free speech and promotion of the arts. Popović asserted, and Judge Davila agreed, that these fundamental ideals, grounded in the First Amendment, are embodied in the well-established "fair use" defense to copyright infringement. Because the fair use defense would preclude liability in a U.S. court, and because the defense reflects a fundamental U.S. public policy, the French judgment—regardless of whether it was defensible under French law—did not warrant recognition in California.

In determining whether an infringement constitutes fair use, U.S. courts weigh four factors. First, courts consider the purpose and character of the use. Here, Judge Davila explained that the factor weighs heavily in favor of fair use because The Picasso Project is intended for "libraries, academic institutions, art collectors, and auction houses," falling within the list of exemplary uses laid out in preamble to § 107 of the Copyright Act. Next, courts evaluate the nature of the copyrighted work. Judge Davila found the second factor weighed slightly against fair use because the French appellate court found (reversing the lower court) the photographs are themselves creative works that seek to find Picasso's "quintessence" through deliberate artistic choices of lighting, lens, filter, framing, and angle. However, the factor's weight against fair use is slight because the Zervos Catalogue is "documentary in nature" and aims to "faithfully reproduce" Picasso's "work, not to showcase the original artistic expression of the photographer." The third factor considers the amount and substantiality of the taking. Judge Davila concluded that this factor favors fair use because the photographs contained in The Picasso Project represent less than ten percent of those in the Zervos Catalogue. Finally, the fourth factor assesses the effect of the use upon the market of the original. Judge Davila found that the fourth factor, which legal precedent deems the most important, weighs strongly in favor of fair use because the Zervos Catalogue and The Picasso Project "do not compete." While the Zervos Catalogue sells as an expensive collector's item to a niche, high-end market, The Picasso Project sells for a much lower price point as an educational resource for libraries and academic institutions. Finding that the first, third, and fourth factors all favor fair use, Judge Davila found The Picasso Project would qualify as fair use under U.S. law.

While fair use is fundamental to upholding the First Amendment and free expression principles, French law includes no parallel or comparable protection. Because Wofsy's use qualifies as a fair use under U.S. law, Judge Davila found that upholding the French judgment would discourage the ideals that the fair use doctrine promotes, making the French judgment repugnant to U.S. public policy. Reflecting on the win, Popović explained: "I think the court made a bold and correct decision, recognizing that French law is very different from U.S. law in the area of fair use, and that the special place of the First Amendment in terms of protecting freedom of speech and artistic expression is important in our legal system." He added, "the result in this case is particularly gratifying because the Court recognized the value of defendants' publication as a reference work intended for libraries, academic institutions, art collectors and auction houses, and that under the circumstances, the French judgment—regardless of its merits under French law—is at odds with the First Amendment and therefore repugnant to U.S. public policy."

Read the court's decision here.

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