The case of the day is De Fontbrune v. Wofsy (N.D. Cal. 2014). Yves Sicre de Fotbrune sued Alan Wofsy in the French courts for copyright infringement. The claim was that Wofsy had reproduced two photographs by Christian Zervos, in which de Fotbrune claimed to have rights, in two catalogues of artwork by Picasso. The original claim was brought in 1996, and the trial court denied relief. In 2001, the Paris Court of Appeals reversed. In 2011, de Fotbrune brought what appears to be an action, again in France, seeking damages for violation of the 2001 judgment. This resulted in a new French judgment in 2012 for damages. De Fotbrune brought yet another copyright action in 2011 against Wofsy in Paris, but the Tribunal de Grande Instance held that de Fotbrune lacked standing to claim copyright infringement, because in 2001 he had transferred his rights to Cahier d’Art Holding. In 2013, de Fontbrune sued Wofsy in the California state court seeking recognition of the 2001 French judgment. Wofsy removed the case to the District Court and moved to dismiss.
The grounds for the motion were, first, that de Fontbrune had no standing because he had transferred his rights to Cahir d’Art, and second, that the 2012 judgment, which arose out of Wofsy’s failure to obey the 2001 judgment, was penal and therefore not entitled to recognition under the UFCMJRA.
On the issue of standing, the court correctly distinguished between De Fontbrune’s standing in the French court when the issue was copyright infringement and his standing in the US court when the issue was enforcement of the French judgment. Of course De Fontbrune has standing to enforce a judgment in his favor. In any event, really looking into the issue of De Fontbrune’s standing in the French court would require a look at the underlying facts outside the pleadings and thus couldn’t be done on a motion to dismiss. Wofsy’s claim was that De Fontrbune had failed to disclose the transfer to the French courts, but the US judge couldn’t get to the merits of that claim on the pleadings.
On the issue of recognition of a penal judgment, the key question was whether the purpose of the judgment was to compensate the plaintiff or to vindicate the public’s interest. In the Ninth Circuit, there are some other relevant factors: whether the award is payable to the plaintiff, or to the state; whether the action arose from a civil action or a penal statute; whether the damages were intended to deter others; and whether the judgment include a mandatory fine, multiple damages, or the like. The 2012 French judgment was an astreinte, which, it seems, is intended, under French law, to deter noncompliance with a judgment. One of the experts who opined on French law said that astreinte originated in the nineteenth century, which was a disappointment to me. The word seemed a little similar to distraint, which is an ancient remedy to recover a debt. But I digress.
The judge held that the astreinte was a penalty, because it was calculated as a multiple of the underlying damage amount and because the court focused on the difficulty the plaintiff had in seeking to enforce the judgment rather than strictly on the amount needed to compensate the plaintiff. Thus the judgment was not entitled to recognition under the UFCMJRA. The underlying 2001 judgment was not entitled to recognition because of California’s ten-year statute of limitation on recognition of foreign judgments.