On September 26, 2016, the Ninth Circuit held that courts
have the right under Federal
Rule of Civil Procedure 44.1 on determining Foreign Law to consider foreign
legal materials at the pleading stage, including expert testimony and
declarations. This allowed the Court to conclude that the French astreinte is not a fine or an award of
damages, which now clears the way for the French Plaintiffs to receive
compensation for copyright infringement. The case is Sicre
de Fontbrune v. Wofsy, 3:13-cv-05957.
The case may be more of interest to federal procedure buffs
than copyright buffs, but I offer it to your attention anyway as being one of
the longest copyright infringement cases ever.
Pablo Picasso had a close relationship with photographer Christian
Zervos and allowed him to take many pictures of his works. This led to the
publication of the complete
catalogue raisonné, published by Cahier d’Art, a publishing company owned
by Christian Zervos, then by his heirs. Twenty-two volumes were published from
1932 to 1970, when Picasso was still alive, and eleven more volumes were
published after his death. The thirty-three volumes reproduce some 16,000 of
Picasso’s works and are regarded as the ultimate reference of Picasso’s work.
Yves Sicre de Fontbrune, now deceased and represented by the
representatives of his estate, bought Cahier
d’Art’s publisher stock in 1979,
thus acquiring the intellectual property right in the Zervos catalogue raisonné. Alan Wofsy is an
American art editor who reproduced some of Zervos’ photographs in two volumes
about Picasso, which he presented in 1996 at the annual Salon du Livre (book fair) in Paris. Mr. Sicre de Fontbrune found
this use to be infringing and filed suit in 1996. The Paris Court of appeals
ruled in his favor in 2001, awarding him an astreinte
and forbidding Alan Wofsy “to use in any way whatsoever [the Zervos photographs]
under an astreinte of 10,000 francs
per infringement.
« Fait défense à Monsieur Alan
WOFSY et à la société ALAN WOFSY & ASSOCIATES de faire usage de quelque
manière que ce soit des photographies susvisées sous astreinte de 10.000 francs
par infraction constatée, dans les 8 jours suivant signification de la présente
décision. »
Under French law, an astreinte
is a tool given to the judge so that she can insure that the court’s ecision
will be executed. It is independent from damages, as stated by article
34-1 of the July 9, 1991 law, now abolished and replaced by article
L. 131-2 of the Code des procedures
civiles d’exécution which states
the same.
Mr. Sicre de Fontbrune filed a claim at the Paris Court of
first instance (TGI) to enforce the astreinte.
The Court ruled in his favor in 2012 and ordered Alan Wofsy to pay him 2
million euros in astreinte. Mr. Sicre
de Fontbrune then filed a suit in California to enforce the astreinte under the California
Uniform Foreign-Court Monetary Judgment Recognition Act (CUFCMJRA), which
governs the enforcement of foreign-country judgments which are final and
enforceable, and which grant or deny monetary recovery.
Translation of astreinte leads to legal discussion
The English versions of both 2001 Paris Court of appeals
judgment and the 2012 Paris TGI’s judgment had translated astreinte as an award of damages. Mr. Wofsy moved to dismiss,
arguing that an astreinte is a “fine
or other penalty” and that therefore the CUFCMJRA does not apply, as it does
not apply to foreign judgments granting a “fine or other penalty.” The District
Court granted his motion to dismiss, after having considered the declarations
of the experts of both parties on the nature of astreinte in French law. The Ninth Circuit reversed and remanded, as
it found an astreinte not to be a “fine
or other penalty” under the CUFCMJRA.
Federal Rule of Civil
Procedure 44.1 on determining Foreign Law
Federal Rule of Civil Procedure 44.1 on determining Foreign
Law gives power to a federal court to “consider any relevant material or
source, including testimony, whether or not submitted by a party or admissible
under the Federal Rules of Evidence [when determining foreign law]. The court's
determination must be treated as a ruling on a question of law.”
The Ninth Circuit found that Rule 44.1 gives the courts a “broad
mandate” and that “foreign legal materials-including expert declarations on
foreign law can be considered in ruling on a motion to dismiss where foreign
law provides the basis for the claim.”
The California
Uniform Foreign-Court Monetary Judgment Recognition Act
The Ninth Circuit then undertook the study of the nature of
the astreinte in the French legal
system, in general, and in particular in this case. To do so, the Court
considered the French judgment against Wofsy, the expert declarations of both
parties, and materials on astreinte
submitted by both parties. It also undertook its own research into American and
French law. It concluded that the astreinte
was not a fine or an award of damages and thus fell within the scope of the
CUFCMJRA.
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The case is interesting as it specifically states that courts
may undertake independent judicial research, including research on foreign law,
beyond the parties’ submissions (see p. 15). U.S. courts are slowly warming up
to the idea of considering foreign law. Justice Stephen Breyer, from the U.S.
Supreme Court, published about a year ago a book
about the foreign laws which the U.S. Supreme Court Justices have had to
consider in the past, which was probably read by many U.S judges.
P.S. The Ninth circuit quoted the United
States v. 594,464 Pounds of Salmon, More or Less case, which must be
one the best names ever for a case. If any reader knows about a case with a
better name, please share it in the comments.
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