Photographs Taken 91 Years Ago Still in Conflict Today

Photographs Taken 91 Years Ago Still in Conflict Today

Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

The conflict of laws has often resulted in interesting dilemmas for courts where precedent cannot be readily applied, necessitating a case-by-case approach. The United States Court of Appeals for the Ninth Circuit reversed a 2019 federal district court’s ruling that held a French court’s ruling was unenforceable due to a conflict in copyright laws between the countries.


The case between De Fontbrune and Alan Wofsy regarding photographs of Picasso’s paintings dates to 1991. 16,000 photographs taken by Christian Zervos, with added creative elements through deliberate choices of lighting, lens filters and framing, were published in Zervos Catalogue in 1932. In 1979, the rights to the publication were acquired by De Fontbrune. In 1991, Wofsy, with permission from Picasso’s estate, published De Fontrbrune’s images in “The Picasso Project”. De Fontbrune held the position that the estate did not have the power to approve such use. At the request of De Fontbrune, in 1998, the police confiscated copies of Wofsy’s book, and De Fontbrune sued for copyright infringement.

In 1998, the French courts ruled that the photographs were used for documentary purposes, and thus were not entitled to copyright protection. This, however, was reversed in 2001 with a ruling against Wofsy, who became responsible for 10,000 francs per infraction. The appellate court agreed that Zervos’ photographs were protected by copyright, as it involved sufficient creativity.  Wofsy appealed to the French Civil Supreme Court, but his case was removed since he failed to pay the damages owed to De Fontbrune.

In 2011, to enforce the decision in the States, De Fontbrune brought the case to California who ruled in Wofsy’s favour in 2019. The District Court held that the French decision infringed Wofsy’s freedom of speech and that Wofsy’s books are “reference works intended for libraries…and such institutions find it an attractive reference due to its price point and that astreinte (monetary damages for copyright infringement) do not apply because of the US’s fair use doctrine. The plaintiffs argued that the book has a commercial purpose, which weighs against fair use. The District Court held that such nature of use does not create a presumption against fair use for public policy reasons. The US’s disregard of another country’s ruling  indicated that the court found it “repugnant” to domestic law.


De Fontbrune challenged the District Court’s holding — one that rejected the French judgement. The appellate court, the Ninth Circuit, noted that there is a high bar for repugnancy, and that a mere conflict of laws is insufficient to meet it. Further, the judgment must be so offensive that it is prejudicial to recognize standards of morality and the general interests of the citizens. The Ninth Circuit also notedd that the French judgment is not a penalty but rather a sum identified under the California Recognition Act.

The Ninth Circuit disagreed that the book  was non-infringing for the purposes of section 107 of the US Copyright Actthat is, the Court does not consider it to be “criticism, comment, news reporting, teaching, scholarship, or research purposes.”  Rather, the Court held that the use was infringing because it is simply a reproduction of copyrighted photographs in a book for sale and the use is not a transformative one that could rebalance fair use in Wofsy’s favour.

The Ninth Circuit used the following four fair use factors to reach their conclusion:

  • the purpose and character of use;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used; and
  • the effect on potential market or value of the copyrighted work

The Court had doubts whether Wofsy could use the fair use defence in the States and thus the inability to use the defence under French law was not in “direct and definite conflict with fundamental American constitutional principles.”

The discrepancy between the decisions of the District Court and Appellate Court may have stemmed from the subjective methodology of the judges of balancing the copyright laws and fair use defence scope with First Amendment freedom of speech rights. Nevertheless, the fair use defence remains a gamble for artists and creatives.

On December 2, 2022, counsel for Wofsy submitted a petition for a Writ of Certiorari —judicial review— to the Supreme Court of the United States.