De Fontbrune v. Wofsy

Background

Yves Sicre de Fontbrune sought recognition in California of a French money judgment against Alan Wofsy and Alan Wofsy & Associates. The French judgment arose from Wofsy’s reproduction of photographs from the Zervos Catalogue, a catalogue of Pablo Picasso’s works. A 2001 French judgment found copyright infringement and imposed an astreinte, a French legal device requiring payment for continued violations. In 2012, a French court entered a judgment requiring Wofsy to pay 2,000,000 euros to Sicre de Fontbrune based on the alleged reproduction of 1,492 photographs.

After removal of the California action to federal court, the district court considered eight defenses under California’s Uniform Foreign-Country Money Judgment Recognition Act. The district court granted summary judgment to Wofsy on the defense that the French judgment was repugnant to United States public policy protecting free expression. It also granted Sicre de Fontbrune partial summary judgment on the defense based on lack of personal jurisdiction, while leaving other defenses unresolved. Sicre de Fontbrune appealed, and Wofsy cross-appealed.

Public-policy defense and fair use

The Ninth Circuit held that Sicre de Fontbrune—not Wofsy—was entitled to partial summary judgment on the public-policy defense. The court explained that refusing recognition on constitutional public-policy grounds requires a direct and definite conflict with fundamental American constitutional principles. Wofsy argued that the French judgment was repugnant to United States public policy because French law did not provide the fair-use defense available under United States copyright law.

The court examined the four fair-use factors for the individual photographs at issue. First, the use was commercial and non-transformative because The Picasso Project reproduced the photographs in books offered for sale and did not give them an entirely different function. Second, the photographs’ creative qualities meant that their nature did not weigh heavily, if at all, in favor of fair use. Third, Wofsy copied each photograph in its entirety, which weighed against fair use. Fourth, there was no evidence countering the presumption of market harm arising from commercial, non-transformative use. The court therefore had serious doubts that fair use would protect the copying. Because the alleged copying likely would not have been fair use under United States law, the absence of a fair-use defense in France did not create the required constitutional conflict.

Subject-matter jurisdiction

The court also held that Sicre de Fontbrune was entitled to partial summary judgment on the defense that the French court lacked subject-matter jurisdiction. The district court had treated Sicre de Fontbrune’s standing as relevant to the French court’s subject-matter jurisdiction. The Ninth Circuit concluded that French law treats standing as an issue of whether a claim is admissible, rather than as a limit on the court’s jurisdiction over the subject matter. The possibility that Sicre de Fontbrune had transferred relevant rights did not establish that the French court lacked subject-matter jurisdiction.

Personal jurisdiction

The Ninth Circuit affirmed the district court’s grant of partial summary judgment to Sicre de Fontbrune on the lack-of-personal-jurisdiction defense. Under California law, a foreign judgment generally cannot be denied recognition for lack of personal jurisdiction when the defendant voluntarily appeared in the foreign proceeding, except in specified circumstances. Wofsy voluntarily appeared by petitioning the French court to set aside the 2012 judgment. The court rejected Wofsy’s argument that this review proceeding was entirely separate from the proceeding that produced the judgment. Wofsy’s arguments went beyond contesting personal jurisdiction or protecting seized property, so they waived the personal-jurisdiction defense.

Notice

The court affirmed the decision to leave the insufficient-notice defense for the fact finder. A mere failure of actual notice does not automatically establish this defense; the party asserting it must show that there was no constitutionally adequate attempt to provide notice of the proceeding and an opportunity to object. The failed attempts to serve Wofsy and Alan Wofsy & Associates did not, by themselves, resolve the issue. A French letter and order sent to Wofsy in November 2011 described the pending proceeding but did not clearly explain that he could participate and present defenses. The record nevertheless contained a factual dispute about whether Wofsy understood his options and actually received notice in sufficient time to defend himself.

Fraud

The court held that Wofsy was not entitled to summary judgment on the fraud defense. Wofsy alleged that Sicre de Fontbrune falsely represented that he owned the copyrights and failed to disclose that he had transferred them. Even assuming that Sicre de Fontbrune misled the French court about his legal interest in the astreinte, the question remained whether the alleged fraud deprived Wofsy of an adequate opportunity to present his case. Because Wofsy did not participate in the astreinte proceeding and factual disputes remained about whether he reasonably should have detected the alleged fraud, summary judgment for Wofsy was improper.

Disposition

The Ninth Circuit held that Wofsy was not entitled to summary judgment on the public-policy defense and that none of the other defenses at issue supplied an alternative basis for affirming the district court’s judgment. It reversed and remanded for further proceedings. Judge Joan N. Ericksen authored the opinion, sitting by designation; Edward J. Davila was the district judge whose judgment was reviewed.