{"id":40623,"date":"2023-02-28T12:00:00","date_gmt":"2023-02-28T17:00:00","guid":{"rendered":"https:\/\/www.iposgoode.ca\/?p=40623"},"modified":"2023-02-28T12:00:00","modified_gmt":"2023-02-28T17:00:00","slug":"photographs-taken-91-years-ago-still-in-conflict-today","status":"publish","type":"post","link":"https:\/\/www.yorku.ca\/osgoode\/iposgoode\/2023\/02\/28\/photographs-taken-91-years-ago-still-in-conflict-today\/","title":{"rendered":"Photographs Taken 91 Years Ago Still in Conflict Today"},"content":{"rendered":"\n
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\"\"Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.<\/em><\/p>\n

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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> a 2019 federal district court\u2019s ruling<\/a> that held a French court\u2019s ruling was unenforceable due to a conflict in copyright laws between the countries.<\/p>\n

Background<\/strong><\/h4>\n

The case between De Fontbrune and Alan Wofsy regarding photographs of Picasso\u2019s paintings dates to 1991. 16,000 photographs<\/a> 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\u2019s estate<\/a>, published De Fontrbrune\u2019s images in \u201cThe Picasso Project\u201d. De Fontbrune held the position that the estate did not have the power<\/a> to approve such use. At the request of De Fontbrune<\/a>, in 1998, the police confiscated copies of Wofsy\u2019s book, and De Fontbrune sued for copyright infringement.<\/p>\n

In 1998, the French courts ruled that the photographs were used for documentary purposes<\/a>, and thus were not entitled to copyright protection. This, however, was reversed<\/a> in 2001 with a ruling against Wofsy, who became responsible for 10,000 francs per infraction<\/a>. The appellate court agreed that Zervos\u2019 photographs were protected by copyright, as it involved sufficient creativity. \u00a0Wofsy appealed to the French Civil Supreme Court, but his case was removed since he failed to pay<\/a> the damages owed to De Fontbrune.<\/p>\n

In 2011, to enforce the decision in the States, De Fontbrune brought the case to California who ruled in Wofsy\u2019s favour in 2019<\/a>. The District Court held that the French decision infringed Wofsy\u2019s freedom of speech and that Wofsy\u2019s books are \u201creference works intended for libraries\u2026and such institutions find it an attractive reference due to its price point<\/a> and that astreinte (monetary damages for copyright infringement) do not apply because of the US\u2019s 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\u2019s disregard of another country\u2019s ruling \u00a0indicated that the court found it \u201crepugnant\u201d to domestic law.<\/p>\n

Appeal <\/strong><\/h4>\n

De Fontbrune challenged<\/a> the District Court\u2019s holding \u2014 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<\/a> 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<\/a> identified under the California Recognition Act.<\/p>\n

The Ninth Circuit disagreed<\/a> that the book \u00a0was non-infringing for the purposes of section 107 of the US Copyright Act<\/em><\/a> \u2014 <\/em>that is, the Court does not consider it to be \u201ccriticism, comment, news reporting, teaching, scholarship, or research purposes.\u201d \u00a0Rather, the Court held that the use was infringing because it is simply a reproduction of copyrighted photographs in a book for sale<\/a> and the use is not a transformative<\/a> one that could rebalance fair use in Wofsy\u2019s favour.<\/p>\n

The Ninth Circuit used the following four fair use factors to reach their conclusion:<\/p>\n