Enforcement Action Tied to Picasso Revived

     SAN FRANCISCO (CN) — The Ninth Circuit revived efforts to enforce a French court’s $2.2 million judgment against a U.S. art editor who infringed on copyrighted photographs of Pablo Picasso’s artworks.
     U.S. Circuit Judge M. Margaret McKeown outlined the case for a three-judge panel in a 30-page opinion Monday.
     Between 1932 and 1970, Christian Zervos took almost 16,000 photographs of Picasso’s art. Cahiers d’Art published the photos in a universally recognized catalog, and Yves Sicre de Fontbrune acquired intellectual property rights to the Zervos Catalog under French law in 1979.
     American art editor Alan Wofsy later reproduced several photographs from the catalog in two volumes on Picasso, which he offered for sale at a Parisian book fair. This prompted de Fontbrune to sue in France for copyright infringement.
     Although a French trial court initially rejected that 1996 claim, the Paris Court of Appeal in 2001 concluded that Wofsy had infringed on de Fontbrune’s rights and prohibited him from further use of the Zervos photographs under penalty of 10,000 francs ($1,700) per infraction.
     A decade later, de Fontbrune filed a claim with a French enforcement judge, who ruled that Wofsy had violated the 2001 judgment by reproducing copyrighted images from the Zervos Catalog. In 2012, the judge awarded an astreinte (penalty) in the amount of 2 million euros ($2.25 million).
     De Fontbrune now seeks recognition of the 2012 judgment under California’s Uniform Foreign-Court Money Judgments Recognition Act, which governs the enforcement of foreign-country judgments that grant or deny monetary recovery. But the statute does not apply to foreign judgments in which the judgment is a fine or other penalty.
     U.S. District Judge Samuel Conti dismissed de Fontbrune’s enforcement action in 2014, but the Ninth Circuit reversed on Monday.
     The ruling notes that “astreinte” appears to translate into “penalty,” but what matters here is not the dictionary definition of the meaning but rather whether the judgment was meant to be a punishment against Wofsy or a private remedy to de Fontbrune.
     “The context of the French orders here persuades us that the purpose of the astreinte awarded to de Fontbrune was not to punish ‘an offense against the public’ or make an example of Wofsy, but to safeguard de Fontbrune’s copyright,” McKeown wrote on behalf of the panel.
     The French court never imposed any criminal sanctions against Wofsy, even though such measures were available under the French Intellectual Property Code, the ruling continues.
     “Ultimately, the purpose of the astreinte was to set a sum, per violation, for Wofsy’s failure to comply with the judicial prohibition on the continued use of de Fontbrune’s copyrighted photographs,” McKeown wrote. “In this sense, it may be likened to a civil contempt order.”
     The “astreinte” award was not a mandatory fine, sanction or multiplier, and it was payable directly to de Fontbrune, rather than to a court of the French state, further indicating it was not meant to be a penalty, the judge said.
     This case differs from another case in which the Ninth Circuit determined that an “astreinte” imposed under French criminal law amounted to a penalty, McKeown said.
     In that case, search engine Yahoo was ordered by a French court to remove access to Nazi-related memorabilia on its auction site or pay 100,000 euros ($112,000) a day. The Ninth Circuit held in that case that the threatened penalty would not likely be enforceable under the Uniform Foreign-Court Money Judgments Recognition Act.
     The sanctions against Yahoo were imposed for violations of the French Penal Code, under which it is a crime to exhibit or display Nazi emblems, and were an issue affecting the whole community and not solely related to a private dispute, the panel said.
     “Here, in contrast, the astreinte was imposed in the context of a civil action for contravening an injunction against the use of copyrighted materials and was payable to the individual copyright holder,” McKeown said.
     Neil Popovic, attorney for Wofsy, said in an interview he believes the Ninth Circuit ruled incorrectly under the circumstances of this case. He plans to file a petition for rehearing.
     “Among other things, the opinion does not address the disproportionality between the amount of the astreinte and any alleged harm to Mr. de Fontbrune. Moreover, in the event the case returns to district court, Alan Wofsy and Alan Wofsy & Associates expect to raise other defenses under the [Uniform Foreign-Country Money Judgments Recognition] Act as well,” Popovic said.
     He noted that the Ninth Circuit’s opinion recites the factual background as claimed by de Fontbrune and that Wofsy “takes strong issues” with those allegations.
     For example, Wofsy had permission to reproduce pictures of Picasso’s work and he did not offer his books for sale at a Parisian book fair, but rather accepted an invitation to display them, Popovic said.
     “In ruling on a motion to dismiss, the district court (and therefore the court of appeal as well) did not have occasion to test the facts. Accordingly, the recitation of ‘facts’ in the appellate decision is really just a recitation of Mr. de Fontbrune’s allegations,” the attorney said.
     De Fontbrune’s attorney declined to comment.

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