One of the pillars of American law is free speech under the First Amendment. This fundamental right triumphs over most other laws in our country, including copyright law. The doctrine of fair use under copyright law ensures protection of free speech, and strikes a balance between a copyright holder’s monopoly on their work and the free speech rights of others, allowing anyone to use (with limitations) the copyrighted works of another.

But does the American policy of protecting free speech via the fair use doctrine preclude enforcement in the U.S. of a foreign copyright infringement judgment if the American defendant’s infringement would clearly have constituted fair use under American law?

This question was raised but not answered in a recent case out of the Court of Appeals for the Ninth Circuit, Sicre De Fontbrune v. Wofsy (July 13, 2022), where the court held that a €2,000,000 French copyright infringement judgment was not repugnant to the First Amendment and could be recognized and domesticated under California law even though there was no fair use defense available to the defendant under French law. In this article, we examine the Ninth Circuit’s ruling and consider whether the debate on this topic has only just begun.

Factual Background

Yves Sicre de Fontbrune acquired the rights to a catalog of photographs of the works of Pablo Picasso and obtained a judgment against Alan Wofsy and Alan Wofsy & Associates (Wofsy) in France for infringing 1,492 of those photos. To collect on the €2,000,000 French judgment, Fontbrune sued Wofsy in California. Wofsy argued that the judgment should not be recognized in California on the ground that the judgment was repugnant to public policy under the First Amendment because French law did not recognize a defense of fair use.

The federal district court in San Jose agreed with Wofsy and granted summary judgment dismissing the case, but the Ninth Circuit reversed and remanded for further proceedings.

Wofsy’s Appeal

The Ninth Circuit framed the issues as follows:

Wofsy’s public policy defense rests on two assertions: first, that the fair use doctrine of U.S. copyright law—a  feature that France’s copyright scheme lacks—would have protected the copying of the photographs at issue; and second, that a judgment imposing copyright liability based on copying that would qualify as fair use is repugnant to our public policy.  [For the reasons below,] we reject the first of these contentions, and therefore need not reach the second.

Evaluating the defendant’s fair use defense, the Ninth Circuit concluded that it was doubtful and that therefore the French law, which did not allow a fair use defense, was not, in this case, “in direct and definite conflict with fundamental American principles.” The French judgment might therefore be enforced in the U.S.:

we have serious doubts that a fair use defense would protect the copying of the photographs at issue, even if the nature of the copyrighted works were to favor fair use. Because it is at least highly debatable—if not absolutely clear—that a fair use defense would not protect the conduct underlying the judgment of which Sicre de Fontbrune seeks recognition, Wofsy's inability to urge a fair use defense in France does not place the French judgment in “direct and definite conflict with fundamental American constitutional principles.” [cit. om.] Sicre de Fontbrune is therefore entitled to partial summary judgment on this defense.

Because the Ninth Circuit had “serious doubts” about Wofsy’s fair use defense, the court did not reach the fascinating question of whether the American policy favoring free speech would preclude enforcement of a foreign copyright infringement award if the defendant’s fair use defense under American law were clear.

Conclusion

It is intriguing that the Ninth Circuit did not find it necessary to come to a conclusion one way or the other on the merits of Wofsy’s fair use defense. The Ninth Circuit cited its previous decision in Naoko Ohno v. Yuko Yasuma (2013) requiring a “direct and definite conflict” with the U.S. Constitution to permit non-recognition of a foreign money judgment under the applicable statute, the Uniform Foreign-Country Money Judgment Recognition Act as enacted in California. The statutory language denies enforcement if the “judgment or the cause of action or claim for relief on which the judgment is based is repugnant to the public policy of [California] or of the United States.” Cal. Civ. Proc. Code § 1716(c)(3).

Thus, whether a foreign copyright infringement money judgment will be denied recognition on grounds of repugnance to the First Amendment appears to depend, at least in the Ninth Circuit, on how good the fair use defense is. Given the shades-of-gray nature of the fair use defense, this promises to be a highly debatable defense in virtually all such cases.