Review your content’s performance and reach.
Become your target audience’s go-to resource for today’s hottest topics.
Understand your clients’ strategies and the most pressing issues they are facing.
Keep a step ahead of your key competitors and benchmark against them.
add to folder:
Questions? Please contact [email protected]
Sicre de Fontbrune v. Wofsy, No. 19-16913 (9th Cir. July 13, 2022) [click for opinion]
In 1979, Plaintiff Yves Sicre de Fontbrune acquired the rights for the business capital, including the intellectual property, of the Zervos Catalogue, a catalogue of the works of Pablo Picasso. Later, Alan Wofsy and Alan Wofsy & Associates (collectively "Wofsy") produced a series of books, "The Picasso Project," that contained reproductions of photos from the Zervos Catalogue.
Sicre de Fontbrune sued Wofsy in France for copyright infringement and a French court found that the photographs' copyrights were infringed. Sicre de Fontbrune then attempted to enforce the French judgment in California under California's Uniform Foreign-Country Money Judgment Recognition Act, Cal. Civ. Proc. Code §§ 1713-1725 (the "California Recognition Act"). However, the district court granted summary judgment for Wofsy on the basis of one of the exceptions in the California Recognition Act: that the French judgment was repugnant to United States public policy protecting free expression.
On appeal, the Ninth Circuit explained that the California Recognition Act provides that a court may refuse to recognize a foreign-country money judgment if: (1) it is repugnant to the public policy of California or the United States; (2) the foreign court lacks subject matter jurisdiction; (3) the foreign court lacks personal jurisdiction over the defendant; (4) the defendant did not receive notice of the proceeding in sufficient time to enable him to defend; or (5) the judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case. The court held that none of these exceptions applied.
The court first rejected Wofsy's public policy defense, which rested on two assertions: (1) that the fair use doctrine of U.S. copyright law would have protected the copying of photographs at issue; and (2) that a judgment imposing copyright liability based on copying that would qualify as fair use is repugnant to U.S. public policy. The court disagreed with the first assertion, holding that the U.S. fair use defense would not likely have been applicable, which meant that Wofsy's inability to assert a fair use defense in France did not place the French judgment in "direct and definite conflict with fundamental American constitutional principles." The court left for another day the question of whether a defendant's lack of opportunity to assert a clearly meritorious fair use defense would render a foreign judgment repugnant to the public policy of the United States or of California.
Second, the court rejected Wofsy's claim that the French court lacked subject matter jurisdiction. Wofsy based this claim on a purported lack of standing by Sicre de Fontbrune, who Wofsy alleged had transferred his interest in the works. However, the court found no indication that a plaintiff's lack of standing circumscribes the judicial power—the subject matter jurisdiction—of French courts. Accordingly, this exception to recognition did not apply.
Third, the court rejected Wofsy's personal jurisdiction argument. The court explained that it would not refuse recognition for lack of personal jurisdiction if a defendant "voluntarily appeared in the proceeding, other than for the purpose of protecting property seized or threatened with seizure in the proceeding or of contesting the jurisdiction of the court over the defendant." Such voluntary appearance could take place either before or after judgment. Here, the court found that Wofsy had waived any personal jurisdiction defense by voluntarily appearing in the proceeding when he petitioned the French court to set aside its judgment.
Fourth, Wofsy asserted that he was entitled to summary judgment on the defense that he received inadequate notice of the proceedings that resulted in the French judgment. The court stated that the insufficient notice defense requires the proponent to prove the absence of a constitutionally adequate attempt at actual notice and held that the district court properly left it to the finder of fact to determine whether Wofsy received notice of the proceeding in sufficient time to enable him to defend.
Fifth, the court concluded that the district court did not err by denying Wofsy summary judgment on his fraud defense. Wofsy had alleged that Sicre de Fontbrune obtained the French judgment by fraud, which deprived Wofsy of an adequate opportunity to present his case. The court held that, even assuming that Sicre de Fontbrune deceived the French court as to its legal interest, Wofsy was not entitled to summary judgment on the claim that the misrepresentation deprived him of an adequate opportunity to present his case because a question remained as to whether Wofsy reasonably should have detected the alleged fraud during the French proceedings.
Accordingly, the Ninth Circuit reversed and remanded for further proceedings.
Allie Stackhouse of the Los Angeles office contributed to this summary.
Content is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This may qualify as "Attorney Advertising" requiring notice in some jurisdictions. Prior results do not guarantee similar outcomes. For more information, please visit: www.bakermckenzie.com/en/client-resource-disclaimer.
add to folder:
If you would like to learn how Lexology can drive your content marketing strategy forward, please email [email protected].
© Copyright 2006 – 2022 Law Business Research