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.
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7 comments:
I would say that the public liberties -- freedom of expression and trade -- which the limitations on copyright's duration and scope are intended to protect are indeed moral imperatives. We are not required to have copyright. But if we have it, we are required to have a reasonably robust public domain and some form of reasonably robust fair-use limitation on copyright's scope.
This doesn't mean that the case should have come out differently. The precise boundaries of fair use are indeed matters of reasonable debate, as the judge implied.
I too think the case came out fine, but I was a bit surprised by the sweeping approach taken in dismissing some of the important cultural issues that might be raised. For example, the French thought it violative of ordre public to deny John Huston the right to stop the unauthorized colorization of "The Asphalt Jundge" even though applying U.S. ownership law as a result of a conflicts analysis would result in him not being an author and therefore having no droit moral.
It seems to me that the court gave insufficient weight to the importance of the public domain.
Imagine the following: a work created in the US falls into the public domain in the US, but the author retains copyright in Canada. A US resident posts the work on a US server that is accessible in Canada. The author then sues in Canada, obtains a default, and attempts to enforce in a US court.
Or, perhaps more problematic, the author sues in US court over the infringement that occurs in Canada, and demands that the US court apply Canadian law to adjudicate that dispute.
To take another example, what if a EUR rightsholder who enjoys protection for a collection of facts sues and obtains a default in Europe? Should a US court enforce the judgment because this is all the stuff of economic regulation?
Fred raises some very important questions, which call for, I think, application of different principles. Understanding that no copyright treaty is self-executing in the U.S., so that U.S. law always applies (including, importantly, choice of law), where two results are possible under U.S. law and neither is dictated by it, many courts will try to avoid a conflict with treaty obligations.
One treaty obligation is found in Berne Article 5(2)which requires that protection be granted in the country in which protection is claimed "independent of the exercise of protection in the country of origin of the work."
In Fred's first hypo, suit in Canada over a work in copyright there but in the PD here, the Canadians should enforce the copyright. The effort to enforce a default judgment here for Canadian activities may not raise public policy issues in the U.S.; those issues would arise, I think, only if the default judgment also included activities in the U.S.
Fred's second hypo (a U.S. court applying Canadian law to Canadian activity) doesn't bother me.
The final hypo, protection under the European Database Directive falls into the same pattern for me: so long as the U.S. court is only enforcing a foreign decree for foreign activity, I don't see a policy problem so long as it doesn't fall into the repugnant zone. I believe, for example, a New York court refused to enforce an English libel judgment against a U.S. citizen because the speech in question would be covered by the First Amendment had it been uttered here. I guess Judge Lynch was saying a dispute over fashion photographs didn't fall into this zone.
This is reminiscent of the Yahoo case from France. Again, in the backdrop is the problem presented by the Internet's international character.
Presumably, Judge Lynch's First Amendment concern is that the US corporation (Viewfinder) would be punished for publishing pics on the Internet that would be perfectly legal in the US (according to Lynch) -- but under French law, a violation of copyright law.
1. This is a case in which Viewpoints' activity of disseminating the pics is occurring in both the US and France (and other parts of the Internet). So that's why Lynch has a foot to stand on in saying this is repugnant to punish this speech. If Viewpoint were only disseminating in France, totally different story.
2. I agree with you that the court was unnecessarily dismissive about the nature of interests in copyright law. Moral rights/author's rights tradition could have been recognized for France. By the same token, the Court could have noted the importance of the First Amendment in copyright law in the U.S. That would have fit comfortably with the court's final analysis.
Thanks for calling this to our attention!
The practical results of defensive litigation brought in other countries are very much overlooked in U.S. practice. It is part of the American tendency towards parochialism. For example, an American director denied final cut by contract in the United States still has standing in a moral rights claim brought in France with respect to displays of the film in France. A judgment obtained from a French court can be very effective throughout the EU. I have been told that an American contract specifically requiring the waiver of moral rights would actually help convince a French court to enforce them! While moral rights claims do take a very long time to work their way through the court system the end result is a mandatory injunction and damages - - a risk few U.S. companies would want to take.
When Vivendi owned Universal, the possibilities were enhanced. A French court claims jurisdiction over a French national company with respect to all of its extraterritorial activities. So, a moral rights claim could have been brought over, let's say a truncated TV version of a film, against Vivendi in France and the French court would have issued an injunction affecting the film's distribution worldwide.
The Sarl Louis Feraud and the companion Pierre Balmain cases are my cases. The Lynch decision is now on appeal to the Second Circuit. We did not feel Lynch got the facts or the law right. So, it will be an interesting appeal.
One fact Lynch got wrong was that the photographer Ashby did not take a few isolated pictures. As Ashby described it in his lengthy affidavit, "[his web site] shows these international designer collections in a manner intended to recreate the experience as if the viewer were actually with the spectators at the shows."
Another fact Lynch got wrong was that the shows were public events.
The recreation of an entire non-public event can hardly be considered fair use.
We will have to wait and see what the Second Circuit does with the above issues and a number of others we will raise.
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