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.