A legal battle that has spanned decades and continents has finally been resolved in a California federal court.  Last month, the Northern District of California granted partial summary judgment in favor of Alan Wofsy on copyright-infringement claims stemming from his use of certain copyrighted photographs in his comprehensive reference catalogue of Picasso’s work, holding that Wofsy’s project constitutes “fair use.”

The Zervos Catalogue and The Picasso Project

Beginning in the 1930s, Christian Zervos, Picasso’s friend, photographed many of his works and began compiling the photographs into a catalogue, known as the Zervos Catalogue.  Yves Sicre de Fontbrune acquired Zervos’ company, Cahiers d’art and the rights to the Zervos Catalogue in 1979.  Then, in 1995, Alan Wofsy began publishing illustrated, encyclopedic-like volumes detailing the history of Picasso’s work, including several copyright-protected photographs from the Zervos Catalogue.  Wofsy’s work was intended to be an accessible yet comprehensive resource for libraries and researchers. 

History of the Litigation

Fontbrune first sued Wofsy in France in the late 1990s for the unauthorized use of copyrighted photographs from the Zervos Catalogue in The Picasso Project.  While the French trial court dismissed the lawsuit, Fontbrune prevailed on appeal in 2001 at the Paris Court of Appeals, who issued an astreinte, a French legal mechanism giving Fontbrune the right to damages from any future infringement of the copyright.  Ten years later, Fontbrune found copies of The Picasso Project in a French bookstore and initiated proceedings to collect damages under the previously ordered astreinte.  The Paris court awarded Fontbrune €2 million for the infringement in 2012.  And Fontbrune then sought to enforce the judgment in California.  Although the lower court initially dismissed the claim on the basis an astreinte is a “fine or other penalty” under the Recognition Act and therefore not subject to recognition, the Ninth Circuit Court of Appeals disagreed and vacated the dismissal.  After the case was reinstated, the parties moved for summary judgment.

Wofsy’s Picasso Project Is Fair Use

On summaru judgment, the Court ruled that Wofsy’s use of the photographs from the Zervos Catalogue constituted “fair use” of a copyrighted work, meaning that recognizing the Paris judgment would be “repugnant to the public policy of the United States,” in contravention of the Recognition Act.  The Court evaluated several factors to determine whether the use of a copyrighted work constituted fair use While The Picasso Project is commercial in nature and meant to be purchased, the court found that it was created primarily for educational purposes and would most likely be purchased by libraries, academic institutions and art collectors.  The court noted that Wofsy used less than ten percent of the approximately 16,000 photographs contained in the Zervos Catalogue, so the unauthorized use was as a lrealtively minor part of the overall publication.  And finally, the court found that there is no meaningful competition between the works because the Zervos Catalogue is rare and only available by special order for upwards of $25,000, while each volume of the Picasso Project costs $150 and is more accessible to the institutions and collectors to which it is marketed.  For these reasons, the court held that the use was protected as a “fair use.”
 
Impact of the Wofsy Decision

This decision is significant to the extent it recognized an important exception to the Recognition Act for cases that involve fair use of copyrighted works, perhaps signaling a more robust defense of the “fair use” exception to copyright protection in the future.