Choice of law is a complex and increasingly important area. In 1998, I was appointed by the Second Circuit as its own expert in the first appellate look at international choice of law issues, Itar-Tass Russian News Agency v. Russian Kurier, Inc, 153 F.3d 82 (2d Cir. 1998). Not being an expert on the subject, I tried to learn, later publishing a lengthy article on the subject in 2000 in the American Journal of Comparative Law, "Choice of Law and Ineternational Copyright." I remain quite interested in the field, while readily admitting that the field seems, as one writer put it, a "quaking quagmire."
Quite recently, Judge Gerard Lynch of the SDNY issued an opinion, Sari Louis Feraud International v. Viewfinder Inc. that raised on of the most intriguing conflicts questions, what the French called "ordre public." In ordre public, after going through a choice of analysis, the country where suit is brought (Country A) determines that the applicable law is that of a foreign country (Country B), but refuses to apply it because it violates a public policy of Country A. This is a high hurdle that cannot be surmounted by the mere fact that two countries' laws are difference. Instead, the difference must be "repugnant" to important national principles.
In Sari Louis Feraud, defendant had taken photographs of a fashion show and posted them on its website, Suit was brought in a French court, which awarded a default judgment, which plaintiff sought to enforce in New York. Defendant argued that U.S. law did not extend protection to fashion designs and that its use was fair use. Applying French law would, it was argued, be offensive to U.S. copyright law. Although the case involved enforcement of a default judgment, the analysis raise similar issues if it was a suit brought initially in U.S. court and French law was applied. In rejecting defendant's argument, Judge Lynch held:
"'A judgment is unenforceable as against public policy to the extent that it is repugnant to fundamental notions of what is decent and just in the State where enforcement is sought.' ... The characteristics of French intellectual property law that Viewfinder alleges differ from the rules in the Untied States do not come close to meeting this standard. Copyright and trademark law are not matters of strong moral principle. Intellectual property regimes are economic legislation based on policy decisions that assign rights based on assessments of what legal rules will produce the greatest economic good for society as a whole. Different countries will, at different times, reach different conclusions as to the types of creative endeavor that should receive the benefit of copyright protection and the extent of that benefit, and different conclusions as to the kinds of competitive activity that should be encouraged or discouraged by trademark law. If the United States has not seen fit to permit fashion designs to be copyrighted, that does not mean that a foreign judgment based on a contrary policy decision is somehow 'repugnant to the public policies underlying the Copyright Act and trademark law.'"
This is a pretty sweeping statement, especially the remark that "Copyright and trademark law are not matters of strong moral principle." The French would disagree. Nevertheless, Judge Lynch certainly assigned to copyright a conventional American, instrumental commercial view. Next case.