Enforceability of Foreign Law More Complex Than Mere Translation

Yves Sicre de Fontbrune owns the copyright in the Zervos Catalog, considered a complete photographic catalog of Pablo Picasso’s artworks and containing more than 16,000 photographs. De Fontbrune successfully sued American art editor Alan Wofsy in France for copyright infringement for reproducing some of the images in two volumes on Picasso. Wofsy continued to use the copyrighted photographs, despite being ordered by the Paris Court of Appeal to stop. De Fontbrune later sued Wofsy to enforce the Paris Court of Appeal astreinte in California under the California Uniform Foreign-Court Monetary Judgment Recognition Act.  After the district court granted Wofsy’s Rule 12(b)(6) motion to dismiss for failure to state a claim, de Fontbrune appealed to the Ninth Circuit Court of Appeals.

The Ninth Circuit framed the issues:

The enforceability of the French award turns on whether, in this case, the astreinte functions as a fine or penalty—which the Uniform Recognition Act does not recognize—or as a grant of monetary recovery—which is statutorily cognizable. The answer to this question is not a simple matter of translation, but, as we explain, requires a broader look at French law to understand the nature of the astreinte remedy in this case, in conjunction with an analysis of California law regarding the enforcement of foreign judgments.

(Opinion pdf page 5).

Federal Rule of Civil Procedure 44.1 authorizes district courts to consider foreign legal materials outside the pleadings in ruling on a motion to dismiss.

Rule 44.1 provides a procedure for raising and determining issues concerning foreign law. 

Rule 44.1 provides:

A party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.

Before the adoption of Rule 44.1 in 1966, foreign law was treated as a question of fact, to be proved like other facts.  Rule 44.1 seeks to equate the process of determining foreign law to the process for determining domestic law. The result is to free litigants and courts from the evidentiary and procedural requirements that apply to factual determinations.

Rule 44.1

permits courts to consider any relevant material, including testimony, without regard to its admissibility under Rule 43, authorizes the court to engage in its own research, eschews any requirement that the court formally take judicial notice of foreign law, and obviates the need for the court to provide formal notice to the parties of its intention to engage in its own research on an issue of foreign law which has been raised by them, or of its intention to raise and determine independently an issue not raised by them.

(Opinion pdf pages 10-11).

According to the Ninth Circuit, the plaintiff does not carry the burden of proving the meaning of foreign law.  Rather, the district and appellate courts have an independent duty to research and determine the meaning of foreign law.

The Ninth Circuit held that the district court did not err in considering expert declarations on the content of French law in ruling on Wofsy’s motion to dismiss for failure to state a claim.

The astreinte awarded to de Fontbrune by the French courts falls under the Uniform Recognition Act as a judgment that grants a sum of money.

California’s Uniform Recognition Act governs the enforcement of foreign-country judgments that (1) grant or deny monetary recovery and (2) are final, conclusive, and enforceable under the law of the jurisdiction where rendered. Cal. Civ. Proc. Code § 1715(a).

(Opinion pdf page 17).

The Uniform Recognition Act excludes enforcement of fines or penalties.  Under an ancient international law maxim, courts of one country do not execute the penal laws of another country.

The test under the Uniform Recognition Act is whether the harm the foreign judgment seeks to redress is private or public.

Private harms are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals, whereas public harms are a breach and violation of public rights and duties, which affect the whole community, considered as a community.

(Opinion pdf page 18).

Courts must look beyond translations, which can be misleading. The character and effect of the foreign judgment must be considered. In implementing the test applied to foreign judgments, California courts examine a number of factors, including

  1. whether the purpose of the award is to compensate an individual or to provide an example or punish an offense against the public;
  2. whether the award is payable to an individual or to the state or one of its organs;
  3. whether the judgment arose in the context of a civil action or through the enforcement of penal laws; and
  4. whether the award was a mandatory fine, sanction, or multiplier.

(Opinion pdf page 20).

Under French law, an astreinte is a hybrid legal device, with elements that can be both penal and civil in nature. Each astreinte must be considered in the context in which it was awarded.

Going through the factors listed above, the Ninth Circuit determined that the purpose of the astreinte awarded to de Fontbrune was to safeguard his copyright, not to punish Wofsy. The Ninth Circuit noted that the Paris Court of Appeal award to de Fontbrune was imposed under the civil portion of the applicable statute and not the criminal portion. 

Ultimately, the purpose of the astreinte was to set a sum, per violation, for Wofsy’s failure to comply with the judicial prohibition on the continued use of de Fontbrune’s copyrighted photographs. In this sense, it may be likened to a civil contempt order. The California Supreme Court has clarified that the primary object of civil contempt is to protect the rights of litigants. Civil contempt is a forward-looking remedy imposed to coerce compliance with a lawful order of the court. Civil contempt orders are thus remedial, and for the benefit of the plaintiff. Here, as Guillou (Wofsy’s expert) pointed out, the astreinte was a personal legal measure of constraint, for de Fontbrune’s benefit; in other words, a forward-looking remedy imposed to coerce compliance with the Paris Court of Appeal’s lawful order to stop Wofsy using de Fontbrune’s copyrighted images.

(Opinion pdf pages 25-26).

The Ninth Circuit concluded that the rest of the factors weighed in favor of the conclusion that the astreinte was not penal in nature. The astreinte was awarded payable to de Fontbrune, not to a French court or the state. The nature of the proceeding in the French courts was civil, not criminal. The astreinte was also not a mandatory fine, sanction or multiplier. 

The Ninth Circuit held that the astreinte awarded to de Fontbrune by the French courts falls under the Uniform Recognition Act as a judgment that grants a sum of money. The astreinte was not a fine or other penalty.  The Ninth Circuit reversed the district court’s decision and remanded the case to the district court.

This case is De Fontbrune v. Wofsy, No. No. 14-15790, Ninth Circuit Court of Appeals.

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