39 F.4th 1214
9th Cir.2022Background
- Christian Zervos compiled the Zervos Catalogue (≈16,000 photographs) originally published by Cahiers d’Art; Yves Sicre de Fontbrune acquired Cahiers d’Art’s business rights in 1979.
- Alan Wofsy published “The Picasso Project,” reproducing many Zervos photographs; French courts (Cour d’Appel, 2001) found those photographs copyrightable and infringed and awarded an astreinte (per-violation monetary sanction).
- In 2011 Sicre sued in France to liquidate the astreinte for 1,492 reproduced photographs; a French TGI default/astreinte judgment (2012) awarded liquidation (limited to €2,000,000 in practice).
- Sicre sued in California (2013) to recognize the French money judgment under California’s Uniform Foreign-Country Money Judgments Recognition Act; district court granted summary judgment for Wofsy on a public‑policy (First Amendment/fair use) ground.
- On appeal the Ninth Circuit (panel) reversed: it applied California law, held that (1) lack of a French fair‑use analogue did not make the judgment repugnant to U.S. public policy because fair use likely would not protect Wofsy’s uses; (2) subject‑matter‑jurisdiction and personal‑jurisdiction issues were resolved for Sicre in part; and (3) factual disputes remain on notice and fraud defenses, so remand required.
Issues
| Issue | Plaintiff's Argument (Sicre) | Defendant's Argument (Wofsy) | Held |
|---|---|---|---|
| Repugnancy to U.S. public policy (First Amendment / fair use) | French judgment is not repugnant; fair‑use analysis would not save Wofsy’s copying | France lacks a U.S.-style fair‑use defense; enforcing the judgment would conflict with U.S. free‑speech policy | Court: fair use likely would not apply (commercial, non‑transformative, full‑work copying, market‑harm presumption); absence of French fair use does not make the judgment repugnant — partial SJ for Sicre |
| Subject‑matter jurisdiction (did French court have SMJ) | TGI had jurisdiction regardless of standing; Sicre entitled to liquidate astreinte | TGI lacked SMJ because Sicre had transferred the underlying copyrights and thus lacked standing | Court: under French law standing/admissibility is distinct from subject‑matter jurisdiction; lack of standing does not show lack of SMJ — partial SJ for Sicre |
| Personal jurisdiction (over Wofsy) | Wofsy voluntarily appeared by seeking to set aside the French judgment, so he waived PJ defense | Wofsy contends he never voluntarily submitted to the TGI’s jurisdiction | Court: petition to set aside/review constituted a voluntary appearance beyond the safe‑harbor exceptions — partial SJ for Sicre |
| Insufficient notice (due process / §1716(c)(1)) | Hague Convention service requests and TGI mailing were adequate attempts; letter alerted Wofsy | Process attempts failed (certificates of non‑service); November TGI letter was ambiguous and may not have given opportunity to defend | Court: factual disputes exist whether reasonable further steps were available/taken and whether Wofsy received adequate actual notice; summary judgment inappropriate |
| Fraud (judgment obtained by fraud depriving opportunity to present case) | No extrinsic fraud that deprived Wofsy of an adequate opportunity to present his case | Sicre misrepresented ownership/standing in French proceedings, which amounted to fraud that prevented Wofsy from defending | Court: disputed factual question whether fraud was extrinsic and whether Wofsy reasonably could have detected it during the French proceedings; summary judgment denied to Wofsy |
Key Cases Cited
- Naoko Ohno v. Yuko Yasuma, 723 F.3d 984 (9th Cir. 2013) (state law governs recognition of foreign judgments; high bar for public‑policy repugnancy)
- Campbell v. Acuff‑Rose Music, Inc., 510 U.S. 569 (1994) (four‑factor fair‑use framework)
- Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) (thumbnails can be transformative where function differs)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (market‑harm focus; importance of fourth fair‑use factor)
- Jones v. Flowers, 547 U.S. 220 (2006) (when mailed notice is returned, state must take reasonable additional steps where available)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due‑process standard for notice: reasonably calculated to apprise interested parties)
- Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848 (9th Cir. 2017) (commercial, non‑transformative use gives rise to presumption of market harm)
- Golan v. Holder, 565 U.S. 302 (2012) (copyright limits on expression and First Amendment accommodations)
- Eldred v. Ashcroft, 537 U.S. 186 (2003) (copyright’s built‑in First Amendment accommodations, including fair use)