Metropolitan News-Enterprise


Tuesday September 27, 2016


Page 1


Ninth Circuit Revives Suit in Battle Over Picasso Photos




The French owner of a catalogue of more than 16,000 photographs of Pablo Picasso artworks may be able to enforce a copyright infringement award against a San Francisco art editor in California, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel reinstated Vincent Sicre de Fontbrune’s suit against Alan Wofsy. Senior U.S. District Judge Samuel Conti of the Northern District of California had dismissed the action under the California Uniform Foreign-Money Judgments Recognition Act, but the panel said the plaintiff adequately pled jurisdiction under the act.

De Fontbrune sued Wofsy in a French court in 1996, accusing the Californian of breaching his copyright in the catalogue complied by Christian Zervos. Zervos, who died in 1970, was a prominent art critic and founder of the French art publishing company Cahiers d’Art.

Rights Claimed

De Fontbrune purchased the publishing stock of Cahiers d’Art in 1979. According to his account of the French legal proceedings, this purchase gave him intellectual property rights in the Zervos catalogue under French law, rights that were infringed when Wofsy offered for sale two volumes on Picasso containing photos from the catalogue.

A French appellate court ruled in 2001 that Wofsy infringed de Fontbrune’s copyrights. The judgment, according to a translation filed in the U.S. District Court action, bars Wofsy from further infringement “under penalty of…[astreinte] of 10,000 francs by proven infraction” plus 800,000 francs in pecuniary damages.

“Astreinte” is a French word, which French-English dictionaries generically define as “penalty,” “coercion,” or “compulsion,” but which has a particular meaning in French law. It is a “device that may appear rather strange” to American lawyers, according to a treatise, and “cannot be neatly categorized as either essentially penal or wholly civil in nature,” Judge M. Margaret McKeown wrote for the Ninth Circuit.

Ten years later after obtaining his judgment from the appeals court, de Fontbrune filed a claim for enforcement in the High Court of Paris seeking a “liquidation d’astreinte” based on that judgment. That court found, in 2012, that Wofsy had violated the 2001 order and awarded the plaintiff 2 million euros.

De Fontbrune then filed his U.S. action. The plaintiff and defendant then filed competing declarations from French legal experts regarding the meaning of the astreinte.

Trial Judge’s Reasoning

Conti first denied Wofsy’s motion to dismiss, but granted it on reconsideration. He reasoned that the primary purpose of the astreinte was to compel compliance with the 2001 judgment, rather than to compensate de Fontbrune for damages, and that it was therefore a “fine or penalty” and thus not enforceable under the Recognition Act.

McKeown yesterday agreed with the district judge that declarations and other materials regarding the interpretation of foreign law may be considered in ruling on a motion to dismiss. A 20-year-old rule, Rule 44.1 of the Federal Rules of Civil Procedure, treats determinations of foreign law as legal, rather than factual issues, marking a “sea change” in the law, the jurist said.

But on the substance, she explained, the district judge was wrong because the astreinte, at least in this case, functions as a money judgment.

“[T]he 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,” the judge noted.

By fixing a sum that Wofsy was to pay for each subsequent infringement, McKeown elaborated, the astreinte functioned like a civil contempt order, or an award of statutory damages as in U.S. copyright law. That the award was made payable to the plaintiff, rather than to a court or the government, and that the French proceedings involved only private parties and not the public prosecutor, further buttress the conclusion that the astreinte in this case did not function as a fine or penalty, she said.

The case is De Fontbrune v. Wofsy, 14-15790.


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