Thursday, June 07, 2007

Enforcing Repugnant Foreign Verdicts

In Sarl Louis Feraud International v. Viewfinder, Inc., 406 F. Supp.2d 274 (S.D.N.Y. 2005), Judge Gerard Lynch refused to enforce a French judgment on the grounds that it would be repugnant to the public policy of New York because it would violate Viewfinder's First Amendment rights. Plaintiff asserted in a French court that its copyright in the actual designer of dresses was infringed by defendant's taking photographs of them and placing them on a website. Viewfinder failed to answer the complaint, and a default judgment was entered. Enforcement was sought in the U.S. under New York State law. Judge Lynch found that there was no big deal in enforcing copyright rights in the design itself even though under U.S. law they would not be protectible. Judge Lynch found (and the Second Circuit later agreed) that copyright laws do not present matters of strong moral policy, but rather are mere economic legislation. But, having done so, Judge Lynch was disturbed about the First Amendment-fair use implications of imposing liability for taking and posting pictures of public events. His analysis of fair use was brief to the say the least.

The Second Circuit has just reversed, 2007 WL 1598057 (2d Cir. June 5, 2007), finding that Judge Lynch was required to undertake a full fair use analysis before finding that enforcement the judgment was repugnant to pubic policy. The court seems to acknowledge that if he concludes the use would be fair under U.S. law (regardless of whether it would be permitted under French law), then the judgment cannot be enforced. This is a major decision.


Unknown said...

It will be interesting to see how Judge Lynch handles the second fair use factor on remand. Should he find that the "nature of the copyrighted work" favors fair use because the works in question (dresses) are not entitled to copyright protection under U.S. law? Or should he find that the second factor weighs against fair use if French copyright law considers dresses to be works that are highly creative and protectable?

James P. Duffy, III said...

In 2007, the Second Circuit reversed the District Court and remanded the case for further action consistent with the Second Circuit's decision. See 489 F.3d 474.

As for David's comment, both the District Court and the Second Circuit said that the French judgment is not repugnant simply because garment designs are not copyrightable in the US at this time.

Balmain has now moved for summary judgment. Feraud will do so shortly.