FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`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,
`
` Nos. 19-16913
`19-17024
`
`D.C. No.
`5:13-cv-05957-
`EJD
`
`
`OPINION
`
`
`
`v.
`
`
`ALAN WOFSY; ALAN WOFSY &
`ASSOCIATES,
`
`Defendants-Appellees/
`Cross-Appellants.
`
`Appeal from the United States District Court
`for the Northern District of California
`Edward J. Davila, District Judge, Presiding
`
`Argued and Submitted February 8, 2022
`San Francisco, California
`
`Filed July 13, 2022
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`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,
`
` Nos. 19-16913
`19-17024
`
`D.C. No.
`5:13-cv-05957-
`EJD
`
`
`OPINION
`
`
`
`v.
`
`
`ALAN WOFSY; ALAN WOFSY &
`ASSOCIATES,
`
`Defendants-Appellees/
`Cross-Appellants.
`
`Appeal from the United States District Court
`for the Northern District of California
`Edward J. Davila, District Judge, Presiding
`
`Argued and Submitted February 8, 2022
`San Francisco, California
`
`Filed July 13, 2022
`
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`Before: Andrew D. Hurwitz and Lawrence VanDyke,
`Circuit Judges, and Joan N. Ericksen,* District Judge.
`
`Opinion by Judge Ericksen
`
`
`SUMMARY**
`
`2
`
`
`
`
`
`Foreign Judgments
`
`
`the district court’s summary
`The panel reversed
`
`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 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
`
`* 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.
`
`
`
`3
`
`SICRE DE FONTBRUNE V. WOFSY
`
`
`
`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 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
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`4
`
`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.
`
`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.
`
`
`
`5
`
`SICRE DE FONTBRUNE V. WOFSY
`
`
`
`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 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
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`6
`
`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
`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.
`
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`7
`
`
`
`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.
`
`
`
`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
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`8
`
`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 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
`
`
`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.”
`
`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)).
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`
`
`works. The Picasso Project contained reproductions of
`photographs from the Zervos Catalogue.
`
`9
`
`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 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
`
`3 The original judgments appear in French. We refer to the certified
`translations provided by the parties.
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`10
`
`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.
`
`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
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`
`
`the Hague 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.
`
`11
`
`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
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`12
`
`Cassation affirmed 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 based on lack
`of subject matter jurisdiction, insufficient notice, and fraud.
`
`
`4 We take judicial notice of the 2019 Cour de Cassation opinion and
`its certified English translation.
`
`
`
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`13
`
`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. § 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.
`
`
`
`14
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`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
`the Uniform Foreign-Country Money Judgments
`of
`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).
`
`“Once coverage under the Uniform Act is established,”
`as it has been here,7 “the presumption in favor of
`enforcement applies,” and the party resisting recognition
`
`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).
`
`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.
`
`
`
`15
`
`SICRE DE FONTBRUNE V. WOFSY
`
`
`
`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.
`
`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.
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`16
`
`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 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
`
`
`
`17
`
`SICRE DE FONTBRUNE V. WOFSY
`
`
`
`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 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
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`18
`
`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 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.
`
`
`8 The court limited the actual astreinte award to the amount that
`Sicre de Fontbrune had sought—2,000,000 Euros.
`
`
`
`
`
`
`SICRE DE FONTBRUNE V. WOFSY
`
`19
`
`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 “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.
`
`is a
`that The Picasso Project
`Wofsy concedes
`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
`
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