Editor’s Claim of “Fair Use” of Photos of Picasso Artwork Fails

Steven T. Lowe

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Art editor Alan Wofsy (Wofsy) and French citizen Yves Sicre De Fontbrune (YSF) have been fighting in courts in both the United States and France for 26 years over the use of photographs of artwork by Picasso. A catalog of 16,000 works by Picasso was obtained by YSF in 1979. In 1991, YSF brought a suit against Wofsy in France for infringement of the images in a book that Wofsy had published. At the trial’s conclusion in 2001, ten years later, YSF was awarded a form of relief permitting him to recover 10,000 francs (about $10,500 USD) from Wofsy for every subsequent violation, if any. This is by no means a type of judgment that is typical in the United States, which is why this case went up to the 9th Circuit Court of Appeals twice.

In 2011, it was discovered by YSF that the same book that was the subject of the earlier case was being offered for sale in France in a small bookstore. YSF brought another action in France to enforce the 2001 judgment. Wofsy claimed he did not receive notice of the proceeding until it was too late. The French court found that Wofsy was given adequate notice, and a “default judgment” was issued in France, ordering Wofsy to pay two million euros to YSF (approximately $2,004,770 USD). 

In November 2013, YSF filed an action in the Superior Court of California in Alameda County seeking “recognition” of the French judgment. Wofsy “removed” the case to federal court where it was subsequently dismissed by the United States District Court for the Northern District of California in March 2014. The Court found that the judgment was a penalty which is not enforceable. However, on September 26, 2016, the Ninth Circuit reversed. The Ninth Circuit found that the judgment could be recognized in the United States and was not a penalty. Then, Wofsy took another shot before the District Court. Wofsy claimed that the action should be dismissed because the judgment was “repugnant to public policy.” The District Court for the Northern District of California agreed and dismissed the case a second time on September 12, 2019. YSF then appealed a second time. 

On July 13, 2022, the Ninth Circuit held that the lower court had erred. The Court reinstated the French judgment. In response to Wofsy’s argument that the use of the Picasso photographs in his book was “fair use,” the Court provided yet another “fair use” decision in 2022. (There is, in fact, a “fair use” case currently before the United States Supreme Court, Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith, as well as a multitude of other fair use cases decided this year.)

The Court identified the factors considered for “fair use.” (1) the purpose and character of the defendant use, (2) the nature of the plaintiff’s copyrighted work, (3) the amount and substantiality of the portion used by the defendant in relation to the copyrighted work as a whole, and (4) the effect of defendants use on the potential market for or value of the copyrighted work. The court held Wofsy would be unsuccessful in asserting a fair use defense because Wofsy copied the entire copyrighted images, without alteration, for a commercial purpose, which harmed the potential for YSF to license them. Thus, factors 1, 3, and 4 favored a finding in YSF’s favor.

In conclusion, the Ninth Circuit reversed the District Court for a second time and remanded the case back to the District Court so that the French Judgement against Wofsy may be enforced against him.

Yves Sicre De Fontbrune is represented by Richard James Mooney of RJM Litigation Group.

Wofsy and Alan Wofsy & Associates are represented by Neil A.F. Popovic and Matthew G. Halgren of Sheppard Mullin Richter & Hampton LLP.

The case is De Fontbrune et al. v. Alan Wofsy et al., case number 19-17024, in the U.S. Court of Appeals for the Ninth Circuit.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving art and copyright law, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.

Find us at our website at www.LoweLaw.com.