APPENDIX
`APPENDIX
`
`
`APPENDIX
`
`
`
`i
`APPENDIX
`TABLE OF CONTENTS
`Appendix A Opinion in the United States Court of
`Appeals for the Ninth Circuit
`(July 13, 2022). . . . . . . . . . . . . . . . App. 1
`Appendix B Order Granting Defendant’s Motion
`for Summary Judgment; Denying in
`Part and Granting in Part Plaintiffs’
`Cross-Motion for Summary Judgment
`in the United States District Court
`Northern District of California San
`Jose Division
`(September 12, 2019) . . . . . . . . . App. 48
`Appendix C Judgment
`in the United States
`District Court Northern District of
`California
`(September 12, 2019) . . . . . . . . . App. 90
`Appendix D Order Denying Rehearing in the
`United States Court of Appeals for the
`Ninth Circuit
`(September 6, 2022) . . . . . . . . . . App. 92
`
`
`
`App. 1
`
`APPENDIX A
`
`FOR PUBLICATION
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`Nos. 19-16913
` 19-17024
`D.C. No. 5:13-cv-05957-EJD
`[Filed: July 13, 2022]
`_____________________________________________
`VINCENT SICRE DE FONTBRUNE; LOAN
`)
`SICRE DE FONTBRUNE; ADEL SICRE
`)
`DE FONTBRUNE; ANAIS SICRE DE FONTBRUNE,
`)
`in their capacity as personal representatives
`)
`of the Estate of YVES SICRE DE FONTBRUNE,
`)
`)
`Plaintiffs-Appellants/
`Cross-Appellees,
`
`v.
`
`))
`
`))
`
`ALAN WOFSY; ALAN WOFSY & ASSOCIATES,
`)
`)
`Defendants-Appellees/
`)
`Cross-Appellants.
`_____________________________________________)
`OPINION
`Appeal from the United States District Court
`for the Northern District of California
`Edward J. Davila, District Judge, Presiding
`
`
`
`App. 2
`Argued and Submitted February 8, 2022
`San Francisco, California
`Filed July 13, 2022
`Before: Andrew D. Hurwitz and Lawrence VanDyke,
`Circuit Judges, and Joan N. Ericksen,* District
`Judge.
`Opinion by Judge Ericksen
`SUMMARY**
`Foreign Judgments
`The panel reversed the district court’s summary
`judgment entered for defendants Alan Wofsy and Alan
`Wofsy & Associates (collectively “Wofsy”) in an action
`brought by Yves Sicre de Fontbrune in California state
`court seeking recognition of a French money judgment.
`The photographer Christian Zervos created the
`Zervos Catalogue of the works of Pablo Picasso, which
`was originally published under the label of Cahiers
`d’Art. In 1979, Sicre de Fontbrune acquired the rights
`for the business capital of Cahiers d’Art. Wofsy
`produced a series of books, titled “The Picasso Project,”
`that contained reproductions of photographs from the
`Zervos Catalogue.
`
`* The Honorable Joan N. Ericksen, United States District Judge for
`the District of Minnesota, sitting by designation.
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`
`
`App. 3
`The French judgment found that Wofsy had violated
`an astreinte – a French legal device that imposed
`money damages for the continued use of copyrighted
`photographs of Pablo Picasso’s works. Sicre de
`Fontbrune had obtained that astreintre as a form of
`relief in a 2001 French judgment finding that the
`photographs’ copyrights were infringed. The district
`court granted summary judgment for Wofsy based on
`a defense to recognition under California’s Uniform
`Foreign-Country Money Judgment Recognition Act,
`Cal. Civ. Proc. Code §§ 1713-1725, namely, the defense
`that the French judgment was repugnant to United
`States public policy protecting free expression.
`The panel held that in international diversity cases,
`such as this one, the enforceability of foreign
`judgments is generally governed by the law of the state
`in which enforcement is sought; and the California
`Recognition Act governed. The Recognition Act lists
`several grounds for nonrecognition. Five statutory
`grounds for nonrecognition of the French judgment are
`at issue in this appeal.
`First, Sicre de Fontbrune challenged the district
`court’s conclusion that the French judgment was
`repugnant to United States public policy favoring free
`expression. The
`fair use defense to copyright
`infringement is one of the built-in First Amendment
`accommodations that ease the tension between free
`expression and U.S. copyright law. As part of its public
`policy defense, Wofsy asserted that the fair use
`doctrine of U.S. copyright law – a feature that France’s
`copyright scheme lacked – would have protected the
`copying of the photographs at issue. The panel rejected
`
`
`
`App. 4
`this contention. The fair use defense requires the
`analysis of four statutory factors, and the panel
`examined the factors with respect to the individual
`photographs in the catalogue at issue. Concerning the
`first factor - the “purpose and character” of the use, the
`panel held that the undisputed evidence showed that
`the use of the copyrighted photographs was commercial
`and non-transformative. This factor weighed against a
`finding of fair use. For the second fair use factor – the
`nature of the copyrighted work, the panel held that the
`photographs’ creative qualities prevented this factor
`from weighing heavily, if at all, in favor of fair use.
`With the third factor – the amount and substantiality
`of the portion used, the panel held this factor weighed
`against fair use where the copying included the
`entirety of the copyrighted photographs at issue and
`Wofsy did not transform the photographs. With the
`fourth fair use factor – the effect on potential market or
`value of the copyrighted work, the panel held that this
`factor weighed against fair use where there was no
`evidence countering the presumption of market harm,
`which arose where the allegedly infringing use was
`both commercial and non-transformative. After
`weighing the four factors, the panel had serious doubts
`that a fair use defense would protect the copying of the
`photographs at issue, even if the nature of the
`copyrighted works were to favor fair use. Wofsy’s
`inability to urge a fair use defense in France did not
`place
`the French
`judgment
`in conflict with
`fundamental American constitutional principles, and
`Sicre de Fontbrune was therefore entitled to partial
`summary judgment on this defense.
`
`
`
`App. 5
`Second, both parties appealed the district court’s
`denial of summary judgment concerning the assertion
`that the French court
`lacked subject matter
`jurisdiction. The French appellate courts did not
`evaluate whether the French trial court, the Tribunal
`de Grande Instance de Paris (“TGI”), had subject
`matter jurisdiction over the astreinte proceeding. The
`panel held that the TGI’s subject matter jurisdiction
`did not depend on Sicre de Fontbrune’s standing, and
`therefore the district court erred in holding otherwise.
`There is no indication that a plaintiff’s lack of standing
`circumscribes the judicial power – the subject matter
`jurisdiction – of French courts. The panel concluded
`that Sicre de Fontbrune is entitled to partial summary
`judgment on this defense.
`Third, Wofsy challenged the district court’s grant of
`summary judgment to Sicre de Fontbrune regarding
`the assertion that the French court lacked personal
`jurisdiction over Wofsy. A court applying California’s
`Recognition Act shall not refuse recognition of a
`foreign-country
`judgment
`for
`lack of personal
`jurisdiction if the defendant “voluntarily appeared in
`the proceeding.” Cal Civ. Proc. Code § 1717(a)(2). The
`panel agreed with the district court that Wofsy waived
`this defense through a voluntary appearance when he
`petitioned the TGI to set aside a 2012 judgment. The
`panel concluded that the district court properly granted
`partial summary judgment to Sicre de Fontbrune
`regarding the defense of lack of personal jurisdiction.
`Fourth, Wofsy asserted that he was entitled to
`summary judgment on the defense that he received
`inadequate notice of the proceedings that resulted in
`
`
`
`App. 6
`the French judgment. The California Supreme Court
`has not clarified the showing that a defendant must
`make to prove the insufficient notice defense. A
`California Court of Appeal has held that a mere failure
`of actual notice does not prove the inadequate notice
`defense. The panel accepted the Court of Appeal’s
`holding that the insufficient notice defense requires the
`proponent to prove the absence of a constitutionally
`adequate attempt at actual notice. The panel
`considered whether the attempts to serve Wofsy before
`the October 2011 hearing constituted sufficient efforts
`at notice, despite their failure. The panel held that the
`failed attempts to service process did not, by
`themselves, disprove the notice defense. There was,
`however, a factual dispute as to whether Wofsy
`received actual notice of the pendency of the action and
`an opportunity to present objections. The panel held
`that the district court appropriately left to the finder of
`fact to determine whether Wofsy “receive[d] notice of
`the proceeding in sufficient time to enable [him] to
`defend.” Cal. Civ. Proc. Code § 1716(c)(1).
`Fifth, Wofsy argued that Sicre de Fontbrune
`obtained the French judgment by fraud that deprived
`Wofsy of an adequate opportunity to present his case.
`The panel held that even assuming that Sicre de
`Fontbrune deceived the TGI as to his legal interest in
`the astreinte, Wofsy was not entitled to summary
`judgment on the claim that the misrepresentation
`“deprived [him] of an adequate opportunity to present
`[his] case.” See Cal. Civ. Code § 1716(c)(2). A question
`remains as to whether Wofsy reasonably should have
`detected the alleged
`fraud during the French
`proceedings, and therefore as to whether such fraud
`
`
`
`App. 7
`deprived him of an adequate opportunity to present his
`case. The panel concluded that the district court did not
`err by denying Wofsy summary judgment on the fraud
`defense.
`The panel held that Wofsy was not entitled to
`summary judgment based on the public policy defense.
`No other ground for nonrecognition at issue in this
`appeal supplied an alternative basis for affirming the
`judgment below. The panel reversed and remanded for
`further proceedings.
`
`COUNSEL
`Richard J. Mooney (argued), RJM Litigation Group,
`San Francisco, California, for Plaintiffs-Appellants.
`Neil A.F. Popović (argued), Jonathan G. Borle, and
`Matthew G. Halgren, Sheppard Mullin Richter &
`Hampton LLP, San Francisco, California,
`for
`Defendants-Appellees.
`Kathryn C. Thornton (argued), Ropes & Gray LLP,
`Washington, D.C.; Marta F. Belcher, James R.
`Batchelder, and Monica A. Ortel, Ropes & Gray LLP,
`East Palo Alto, California; Corynne McSherry, Mitchell
`Stoltz, and Alexandra Moss, Electronic Frontier
`Foundation, San Francisco, California; Robert S.
`Adams IV and Avery Gardiner, Center for Democracy
`& Technology, Washington, D.C.; John Bergmayer,
`Public Knowledge, Washington, D.C.; for Amici Curiae
`Project Gutenberg Literary Archive Foundation,
`Electronic Frontier Foundation, Center for Democracy
`and Technology, and Public Knowledge.
`
`
`
`App. 8
`OPINION
`ERICKSEN, District Judge:
`INTRODUCTION
`Yves Sicre de Fontbrune brought this action in
`California state court seeking recognition of a French
`money judgment. The French judgment found that
`Defendants, Alan Wofsy and Alan Wofsy & Associates
`(collectively, “Wofsy”), had violated an astreinte—a
`French legal device that imposed money damages for
`the continued use of copyrighted photographs of Pablo
`Picasso’s works. Sicre de Fontbrune had obtained that
`astreinte as a form of relief in a 2001 French judgment
`finding that the photographs’ copyrights were
`infringed.
`After removal, the district court considered motions
`for summary judgment on eight defenses to recognition
`under the California version of the Uniform Foreign-
`Country Money Judgment Recognition Act, Cal. Civ.
`Proc. Code §§ 1713–1725. The district court granted
`summary judgment for Wofsy based on one of those
`defenses: that the French judgment was repugnant to
`United States public policy protecting free expression.
`Sicre de Fontbrune appeals,1 and Wofsy cross-appeals
`the denial of summary judgment on other defenses. We
`
`1 Sicre de Fontbrune died in 2015. His wife and children were later
`substituted as successors in interest. Sicre de Fontbrune v. Wofsy,
`838 F.3d 992, 996 n.3 (9th Cir. 2016), as amended on denial of
`reh’g and reh’g en banc (Nov. 14, 2016). For convenience, we refer
`to them collectively as “Sicre de Fontbrune.”
`
`
`
`App. 9
`conclude that summary judgment was not proper, and
`we reverse and remand for further proceedings.
`FACTUAL AND PROCEDURAL BACKGROUND
`Starting in 1932, the photographer Christian Zervos
`created a catalogue raisonné2 (the “Zervos Catalogue”)
`of the works of the Spanish artist Pablo Picasso. Sicre
`de Fontbrune, 838 F.3d at 995. The catalogue
`ultimately featured nearly 16,000 photographs of
`Picasso’s works. Id. Zervos originally published this
`catalogue under the label of Cahiers d’Art. Id. In 1979,
`Sicre de Fontbrune acquired the rights to the business
`capital of Cahiers d’Art, including its intellectual
`property. Id.
`In 1991, Alan Wofsy Fine Arts LLC acquired
`permission from the Estate of Pablo Picasso to publish
`a work illustrating and describing works by Picasso.
`Wofsy then produced a series of books on Picasso, titled
`“The Picasso Project”—a chronological illustrated
`catalogue of Picasso’s works. The Picasso Project
`contained reproductions of photographs from the
`Zervos Catalogue.
`In 1996, at Sicre de Fontbrune’s request, French
`police seized two volumes of The Picasso Project that
`were offered for sale at a book fair in Paris. Sicre de
`Fontbrune then sued Alan Wofsy in France for
`copyright infringement. Alan Wofsy appeared, and
`
`2 A catalogue raisonné is the “‘complete published catalogue of an
`artist’s work.’” Sicre de Fontbrune, 838 F.3d at 995 n.1 (quoting
`The Concise Oxford Dictionary of Art Terms Online (Michael
`Clarke & Deborah Clarke eds., 2d ed. 2010)).
`
`
`
`App. 10
`Alan Wofsy & Associates intervened. In 1998, a trial
`court, the Tribunal de Grande Instance de Paris
`(“TGI”), determined that the photographs in the Zervos
`Catalogue were documentary in nature and therefore
`ineligible for copyright protection.
`On September 26, 2001, the French Cour d’Appel
`(Court of Appeal) reversed and entered judgment in
`favor of Sicre de Fontbrune, determining that the
`photographs at issue did not merely copy Picasso’s
`works, but rather added creative features through
`“deliberate choice[s] of lighting, the lens, filters, [and]
`framing or angle of view.”3 The court also confirmed
`that Sicre de Fontbrune had obtained “the intellectual
`property rights on the intangible items attached to the
`stock, to the [Zervos] catalogue and the photographs
`that it contains” when he acquired the Cahiers d’Art
`business in 1979. The Cour d’Appel found Wofsy “guilty
`of infringement of copyright,” and awarded various
`relief to Sicre de Fontbrune, including a legal device
`known as an astreinte, under which Wofsy would be
`liable for damages of 10,000 francs for each proven
`infraction of the prohibition on using the photographs
`at issue. Wofsy appealed to the Cour de Cassation (the
`French Civil Supreme Court), but that court removed
`the appeal from its docket after Wofsy did not pay the
`other damages and costs the Cour d’Appel awarded to
`Sicre de Fontbrune. On December 20, 2001, Sicre de
`Fontbrune sold his business capital in Cahiers d’Art,
`including all its tangible and intangible components, to
`a third party.
`
`3 The original judgments appear in French. We refer to the
`certified translations provided by the parties.
`
`
`
`App. 11
`Sicre de Fontbrune initiated a new lawsuit (the
`“Astreinte Proceeding”) in the TGI against Wofsy on
`July 22, 2011, seeking to “liquidate” the astreinte
`awarded by the Cour d’Appel in 2001. Sicre de
`Fontbrune claimed that copies of The Picasso Project
`were offered for sale in a French bookstore in 2011, and
`that 1,492 photographs from the Zervos Catalogue were
`reproduced in these works in violation of the astreinte.
`Wofsy maintains that he was never served with
`process in the Astreinte Proceeding. Sicre de Fontbrune
`asserts that a huissier—a bailiff-like officer of the
`French court—sent the complaint and French
`equivalent of a summons to Wofsy through procedures
`consistent with the Convention on the Service Abroad
`of Judicial and Extrajudicial Documents in Civil or
`Commercial Matters, Nov. 15, 1965 (“Hague Service
`Convention”), 20 U.S.T. 361, T.I.A.S. No. 6638. The
`French court official requested service at addresses
`that the French courts already had on file: 401 China
`Basin Street in San Francisco, and P.O. Box 2210 in
`San Francisco. The U.S. process server, however, failed
`to effect service.
`The TGI held a hearing in the Astreinte Proceeding
`on October 25, 2011. Wofsy did not appear. On
`November 15, 2011, the TGI ordered another hearing.
`The order contained a brief description of the claim and
`proceedings to date and the decision to reopen the
`proceedings for a hearing on December 13, 2011, “for
`the production by [Sicre de Fontbrune] of the certificate
`from the foreign authority responsible for notification
`of the document instituting the proceedings,” as
`requested in accordance with Article 6 of the Hague
`
`
`
`App. 12
`Service Convention. Wofsy received a copy of that order
`in late November 2011. A letter accompanying the
`order explained the time limits for appealing the order.
`At the December 2011 hearing, the TGI accepted
`the requested service certificates, and concluded that
`Wofsy had been “duly summoned” in accordance with
`the French Civil Procedure Code. But Wofsy again
`failed to appear. The TGI entered a default judgment
`against Wofsy on January 10, 2012, ordering Wofsy to
`pay 2,000,000 Euros to Sicre de Fontbrune in
`liquidation of the astreinte.
`While the Astreinte Proceeding was pending, Sicre
`de Fontbrune commenced another lawsuit in the TGI
`on September 20, 2011. The suit alleged copyright
`infringement by Wofsy and two defendants not party to
`the instant lawsuit: Alan Wofsy Fine Arts LLC, and the
`French bookstore where copies of The Picasso Project
`had been discovered for sale in 2011. In January 2013,
`the TGI found that on December 20, 2001, Sicre de
`Fontbrune had sold the “commercial rights which [he]
`had acquired on May 31, 1979,” and that he no longer
`had standing to sue for copyright infringement.
`On February 25, 2014, Wofsy initiated a proceeding
`in the TGI seeking to vacate the 2012 astreinte
`judgment, arguing that Sicre de Fontbrune’s transfer
`of copyrights in December 2001 deprived him of
`standing to bring the Astreinte Proceeding. The TGI
`dismissed this “Review Proceeding” in August 2014.
`Wofsy appealed, and the Cour d’Appel affirmed the
`dismissal in April 2018, finding the filing of the Review
`Proceeding untimely. The Cour de Cassation affirmed
`
`
`
`App. 13
`that decision on October 17, 2019. ECF Nos. 24 (Case
`No. 19-16913), 22 (Case No. 19-17024).4
`Before Wofsy filed the Review Proceeding, though,
`Sicre de Fontbrune brought the instant action in the
`Superior Court of California in Alameda County in
`November of 2013, seeking recognition of the astreinte
`judgment. After Wofsy removed the action to federal
`court, the district court dismissed the case with
`prejudice pursuant to Federal Rule of Civil Procedure
`12(b)(6). We reversed, holding that the astreinte was
`not a penalty but rather a judgment for “a sum of
`money” cognizable under the Recognition Act. Sicre de
`Fontbrune, 838 F.3d at 1007.
`On remand, the district court heard cross-motions
`for summary judgment on eight defenses under the
`Recognition Act. See Cal. Civ. Proc. Code § 1716. The
`district court granted summary judgment for Wofsy on
`only one of those defenses, determining that the
`astreinte judgment was repugnant to public policy, and
`exercising its discretion to decline recognition. Sicre de
`Fontbrune appeals the grant of summary judgment to
`Wofsy on that issue, and appeals the district court’s
`denial of partial summary judgment to Sicre de
`Fontbrune on the defense of lack of subject matter
`jurisdiction. Wofsy cross-appeals the grant of partial
`summary judgment to Sicre de Fontbrune on the
`defense of lack of personal jurisdiction, and appeals the
`denial of summary judgment to Wofsy on the defenses
`
`4 We take judicial notice of the 2019 Cour de Cassation opinion and
`its certified English translation.
`
`
`
`App. 14
`based on lack of subject matter jurisdiction, insufficient
`notice, and fraud.
`JURISDICTION AND STANDARD OF REVIEW
`We have jurisdiction to review a district court’s final
`judgment under 28 U.S.C. § 1291. Our review extends
`to an order denying partial summary judgment that
`has become part of a final judgment. Scribner v.
`WorldCom, Inc., 249 F.3d 902, 907 (9th Cir. 2001).
`We review a summary judgment de novo. Id. We
`“view the evidence in the light most favorable to the
`nonmoving party, determine whether there are any
`genuine issues of material fact, and decide whether the
`district court correctly applied the relevant substantive
`law.” Animal Legal Def. Fund v. U.S. Food & Drug
`Admin., 836 F.3d 987, 989 (9th Cir. 2016) (en banc)
`(per curiam).
`
`DISCUSSION
`“In international diversity cases such as this one,
`‘enforceability of judgments of courts of other countries
`is generally governed by the law of the state in which
`enforcement is sought.’” Naoko Ohno v. Yuko Yasuma,
`723 F.3d 984, 990 (9th Cir. 2013) (quoting Yahoo! Inc.
`v. La Ligue Contre Le Racisme et L’Antisemitisme, 433
`F.3d 1199, 1212 (9th Cir. 2006)). In this removed
`action, California law—the Recognition Act—governs.5
`
`5 Although there is no contest about diversity of citizenship, the
`district court determined that the defendants in this case are
`citizens and residents of California—a finding not disputed on
`appeal. Although a defendant’s citizenship in the state where an
`action is brought ordinarily prevents removal, 28 U.S.C.
`
`
`
`App. 15
`California’s Recognition Act is modeled on the 2005
`version of the Uniform Foreign-Country Money
`Judgments Recognition Act. AO Alfa-Bank v. Yakovlev,
`230 Cal. Rptr. 3d 214, 221 (Ct. App. 2018), as modified
`on denial of reh’g (Apr. 3, 2018); see Unif. Foreign-
`Country Money Judgments Recognition Act (Nat’l Conf.
`of Comm’rs on Unif. State L. 2005). Amendments to
`California’s Recognition Act became effective in 2018.
`See Alfa-Bank, 230 Cal. Rptr. 3d at 221. But those
`amendments apply only to claims commenced after
`their effective date. Id. at 222. The district court was
`thus correct to apply the version of the state
`Recognition Act effective at the time Sicre de
`Fontbrune filed this action in 2013.6
`A majority of states have adopted either the 1962
`version of the Uniform Foreign-Country Money
`Judgments Recognition Act, or its 2005 update. Ohno,
`723 F.3d at 990 n.8. Non-California authorities that
`interpret the 1962 or the 2005 uniform acts, or that
`apply principles of comity-based recognition to foreign
`judgments, carry persuasive value in the application of
`California’s Recognition Act. Alfa-Bank, 230 Cal. Rptr.
`3d at 222–23 (citing Cal. Civ. Proc. Code § 1722).
`
`§ 1441(b)(2), that rule is “procedural, or non-jurisdictional,” Lively
`v. Wild Oats Markets, Inc., 456 F.3d 933, 939 (9th Cir. 2006).
`Removal is unchallenged here.
`
`6 As in the district court’s order, all citations to the Recognition Act
`in this opinion refer to the version of the Recognition Act in effect
`at the time this suit began in 2013, unless otherwise noted. See
`Cal. Civ. Proc. Code §§ 1713 et seq. (West 2013).
`
`
`
`App. 16
`is
`“Once coverage under the Uniform Act
`established,” as it has been here,7 “the presumption in
`favor of enforcement applies,” and the party resisting
`recognition must establish a ground for nonrecognition.
`Ohno, 723 F.3d at 991 (quoting Cal. Civ. Proc. Code
`§ 1716(d)). The Recognition Act lists several grounds
`for nonrecognition. Some grounds, if established,
`preclude recognition, Cal. Civ. Proc. Code § 1716(b), but
`others only confer discretion on courts to deny
`recognition, Cal. Civ. Proc. Code § 1716(c).
`Five statutory grounds for nonrecognition are at
`issue in this appeal. First, Sicre de Fontbrune
`challenges the district court’s conclusion that the
`French judgment was repugnant to U.S. public policy
`favoring free expression, and argues that he was
`entitled to partial summary judgment on this issue.
`Second, both parties appeal the district court’s denial
`of summary judgment concerning the assertion that the
`French court lacked subject matter jurisdiction. Third,
`Wofsy challenges the district court’s grant of partial
`summary judgment to Sicre de Fontbrune regarding
`the assertion that the French court lacked personal
`jurisdiction over Wofsy. Fourth, Wofsy asserts that he
`was entitled to summary judgment on the defense that
`he received inadequate notice of the proceedings that
`resulted in the French judgment. And fifth, Wofsy
`argues that Sicre de Fontbrune obtained the French
`judgment by fraud that deprived Wofsy of an adequate
`opportunity to present his case.
`
`7 Given our previous opinion, the parties no longer dispute that the
`2012 Astreinte Judgment falls within the coverage of the
`Recognition Act. See Sicre de Fontbrune, 838 F.3d at 1007.
`
`
`
`App. 17
`We conclude that Sicre de Fontbrune—not Wofsy—
`was entitled to summary judgment on the defense of
`repugnancy to public policy. We also conclude that no
`other defenses raised on appeal provide an alternate
`basis to affirm the grant of summary judgment. See
`Spencer v. Peters, 857 F.3d 789, 797 n.3 (9th Cir. 2017).
`Accordingly, we reverse the district court’s judgment
`and remand for further proceedings.
`I.
`Public Policy
`The California Recognition Act allows a court to
`decline to recognize a foreign-country money judgment
`if the “judgment or the cause of action or claim for
`relief on which the judgment is based is repugnant to
`the public policy of [California] or of the United States.”
`Cal. Civ. Proc. Code § 1716(c)(3). The United States
`undoubtedly has robust public policy favoring free
`expression. See Cohen v. California, 403 U.S. 15, 24
`(1971) (“The constitutional right of free expression is
`powerful medicine[.]”). But “some restriction on
`expression is the inherent and intended effect of every
`grant of copyright.” Golan v. Holder, 565 U.S. 302,
`327–28 (2012). The fair use defense to copyright
`infringement is one of the “built-in First Amendment
`accommodations” that ease the apparent tension
`between free expression and U.S. copyright law. See
`Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).
`The district court determined that Wofsy would
`have prevailed on a fair use defense to the copyright
`infringement claim on which the astreinte judgment
`was based. The court also concluded that French law’s
`failure to allow for Wofsy’s fair use defense made the
`
`
`
`App. 18
`judgment repugnant to U.S. public policy protecting
`expression.
`“California courts have set a high bar for
`repugnancy under the Uniform Act.” Ohno, 723 F.3d at
`1002. The issue is not simply whether the “foreign
`judgment or cause of action is contrary to our public
`policy.” Id. Rather, the question is whether either is “so
`offensive to our public policy as to be prejudicial to
`recognized standards of morality and to the general
`interests of the citizens.” Hyundai Sec. Co. v. Lee, 182
`Cal. Rptr. 3d 264, 272 (Ct. App. 2015) (cleaned up), as
`modified (Jan. 14, 2015). Under this standard, a
`“difference in law, even a marked one, is not sufficient
`to raise a public policy issue. Nor is it relevant that the
`foreign law allows a recovery that the forum state
`would not allow.” Id. (cleaned up). Instead, public
`policy is violated “only if recognition or enforcement of
`the foreign-country judgment would tend clearly to
`injure public health, the public morals, or the public
`confidence in the administration of law, or would
`undermine that sense of security for individual rights,
`whether of personal liberty or of private property,
`which any citizen ought to feel.” Id. (cleaned up).
`The standard is not lower where the asserted
`repugnancy arises
`from
`inconsistency with
`constitutional principles rather than with statutes or
`common law. Ohno, 723 F.3d at 1004. In such cases,
`“only judgments presenting a direct and definite
`conflict with fundamental American constitutional
`principles will be denied recognition because
`repugnant.” Id. at 1004–05 (emphasis added) (noting
`cases finding repugnancy to the First Amendment
`
`
`
`App. 19
`where the foreign judgments “would unquestionably
`violate the Constitution were they issued here with
`respect to domestic activity”). Thus, in Ohno, this Court
`determined that a judgment was not repugnant to
`public policy in part because the defendant’s position—
`that imposing tort liability on a church’s religious
`practice was incompatible with the religion clauses of
`the California and United States constitutions—was
`debatable. Id. at 1009.
`Wofsy’s public policy defense rests on two
`assertions: first, that the fair use doctrine of U.S.
`copyright law—a feature that France’s copyright
`scheme lacks—would have protected the copying of the
`photographs at issue; and second, that a judgment
`imposing copyright liability based on copying that
`would qualify as fair use is repugnant to our public
`policy. For the reasons below, we reject the first of
`these contentions, and therefore need not reach the
`second. See S.A.R.L. Louis Feraud Int’l v. Viewfinder,
`Inc., 489 F.3d 474, 483 (2d Cir. 2007) (“If the
`publication of photographs of copyrighted material in
`the same manner as [the defendant] has done in this
`case would not be fair use under United States law,
`then
`the French
`intellectual property regime
`sanctioning the same conduct certainly would not be
`repugnant to public policy.”).
`The fair use defense under U.S. copyright law
`requires the analysis of four statutory factors.
`Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578
`(1994). They are “(1) the purpose and character of the
`use, . . . (2) the nature of the copyrighted work; (3) the
`amount and substantiality of the portion used in
`
`
`
`App. 20
`relation to the copyrighted work as a whole; and (4) the
`effect of the use upon the potential market for or value
`of the copyrighted work.” 17 U.S.C. § 107.
`While Wofsy claims fair use of the Zervos Catalogue
`as a whole, the individual photographs within the
`Zervos Catalogue are at issue in this case. The 2001
`Cour d’Appel decision held that these photographs were
`eligible for copyright protection in France and that that
`the copyright had been infringed. And the astreinte
`provided for damages of 10,000 francs for each violation
`of the prohibition on further use of the photographs.
`The 2012 astreinte judgment recognized damages of
`14,920,000 francs,8 based on the 1,492 photographs
`copied from the Zervos Catalogue. We accordingly
`examine the fair use factors with respect to the
`photographs, and need not analyze fair use with
`respect to the Zervos Catalogue as a whole.
`A. Purpose and character of use
`The “purpose and character” of an allegedly
`infringing use may indicate fair use, depending in part
`on “whether such use is of a commercial nature or is for
`nonprofit educational purposes.” 17 U.S.C. § 107.
`Commercial use “‘tends to weigh against a finding of
`fair use.’” Campbell, 510 U.S. at 585 (quoting Harper &
`Row Publ’ers, Inc. v. Nation Enters., 471 U.S. 539, 562
`(1985)). It is “not conclusive . . . but rather a fact to be
`weighed along with others in fair use decisions.” Id.
`(citing Sony Corp. of Am. v. Universal City Studios,
`Inc., 464 U.S. 417, 448–49 (1984)) (cleaned up). The
`
`8 The court limited the actual astreinte award to the amount that
`Sicre de Fontbrune had sought—2,000,000 Euros.
`
`
`
`App. 21
`“central purpose” of considering the “purpose and
`character” of the work is to determine whether the new
`work is “transformative”—that is, whether it “adds
`something new, with a further purpose or different
`character, altering the first with new expression,
`meaning, or message.” Id. at 579.
`Wofsy concedes that The Picasso Project is a
`commercial venture. But the district court observed
`that The Picasso Project was “intended for libraries,
`academic institutions, art collectors, and auction
`houses,” and concluded that The Picasso Project’s
`purpose aligned with the “criticism, comment, news
`reporting, teaching . . . , scholarship, or research”
`purposes that Section 107 characterizes as non-
`infringing. See 17 U.S.C. § 107. The district court relied
`on that conclusion to find that the first fair use factor
`weighed “strongly” in favor of fair use.
`We disagree. The “use” at issue is the allegedly
`infringing one—the reproduction of copyrighted
`photographs in a book offered for sale. The “end-user’s
`utilization of the product is largely irrelevant.” Zomba
`Enters., Inc. v. Panorama Recs., Inc., 491 F.3d 574, 582
`(6th Cir. 2007); see also Princeton Univ. Press v.
`Michigan Document Servs., Inc., 99 F.3d 1381, 1386
`(6th Cir. 1996) (rejecting a fair use defense where a
`college-town copy shop
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