22 Volume 22, April–June 2016 international law update
© 2016 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) |
I    
   P  F
     
  C, N
C   F 
(“”)    U
R A     “[]
 . . .    ”
“Zevros Catalog” is a 22 volume “catalogue
raisonné” containing almost 16,000 photographs
of Picasso’s art. ese photographs of Picasso’s
artwork were taken by Christian Zevros between
1932 and 1970, and published by Cahiers d’Art. In
1979, Yves Sicre De Fontbrune (“De Fontbrune”)
purchased Cahiers d’Art’s publisher’s stock,
acquiring intellectual property rights in the Zervos
Catalog under French law.
Almost two decades later, an American art
editor, Alan Wofsy and Alan Wofsy and Associates
(collectively, “Wofsy”), reproduced the photographic
images from the Zervos Catalog in two volumes
on Picasso. Wofsy oered these books for sale at
a Parisian book fair. De Fontbrune sued Wofsy in
a French court claimed that these reproductions
violated his copyright in the Zervos Catalog. e
French trial court rejected De Fontbrune’s claim.
De Fontbrune then appealed to the Paris Court of
In its 2001 decision (the “2001 Judgment”),
the French Court of Appeal found Wofsy guilty of
infringement of copyright and of infringement on
De Fontbrune’s rights, and required Wofsy to pay
De Fontbrune 800,000 francs in pecuniary damages
in redress of his injury resulting from the copyright
infringement. Moreover, the court prohibited
Wofsy from the use in any manner whatsoever of
the Zervos photographs under penalty of astreinte
of 10,000 francs by proven infraction. Note: e
French word “astreinte” generally translates as
Ten years later, De Fontbrune led a claim in
the Tribunal de Grande Instance de Paris (High
Court of Paris) seeking a judgment ordering Wofsy
to pay him the sum of 2,000,000 Euros from the
amount of the liquidation d’astreinte. In a 2012
decision (the “2012 Judgment”), the enforcement
judge found that Wofsy had violated the 2001
Judgment and awarded the astreinte pronounced
by the Paris Court of Appeal in the amount of
2,000,000 euros to De Fontbrune.
De Fontbrune then sought to enforce this
astreinte in a California state court seeking
recognition of the 2012 Judgment under the
California Uniform Foreign-Court Monetary
Judgment Recognition Act (“Uniform Recognition
Act” or “the Act”), Cal. Civ. Proc. Code §§ 1713 et
seq. Wofsy removed the action to federal court and
led a motion to dismiss under Rule 12(b)(6).
In its motion, Wofsy contested the
characterization of astreinte as “damages” in the
English versions of the 2001 and 2012 Judgments
attached to de Fontbrune’s complaint. It argued
that astreinte functions as a penalty and as such it
is not cognizable under the Uniform Recognition
Act, and provided a declaration by a Frenchy lawyer,
Vonnick le Guillou, in support of this assertion. De
Fontbrune then provided a declaration from his
own expert on French law explaining that, in the
French system, astreinte can function as an award
of damages.
e district court initially denied Wofsy’s
motion in part. After Wofsy led a motion for
reconsideration the district court reversed its
decision. e district court concluded that its
previous nding concerning judicial notice of
foreign law was in error; that Rule 44.1 permits
judicial consideration of any relevant material or
source in determining foreign law, irrespective of
its admissibility as evidence; and that it could take
judicial notice of the declarations of the French legal
experts because determinations of foreign law are
issues of law, not fact. us the court determined
that the primary purpose of the astreinte was not
to compensate de Fontbrune for the damages he

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