Sarl Louis Feraud International v Viewfinder

Sarl Louis Feraud International v. Viewfinder

Facts: Plaintiffs are French corporations that design high fashion clothing for women. Defendant is a Delaware corporation with principal place of business in New York and it operates a website called firstView.com on which it posts photographs of fashion shows held by designers around the world. Viewfinder contends to be an Internet fashion magazine akin to the online version of Vogue and users pay a fee to view photographs of collections. Viewfinder displayed photographs of the designer’s fashion shows which revealed designs from their upcoming collection.

Procedural: First, the plaintiff’s filed suit against the defendant in the Tribunal de grande instance de Paris for alleged unauthorized use of their intellectual property. The French court found the plaintiff’s collections from 1996-2001 posted on Viewfinder’s website were posted without the necessary authorization and that Viewfinder had committed “parasitism” under French law because it had taken advantage of plaintiff’s reputation and commercial efforts. Viewfinder appealed these judgments to the Cour d’appel de Paris, but withdrew its appeal without opposition after plaintiffs filed their brief, then the French appellate court accordingly dismissed the appeal. Next the plaintiffs filed separate complaints in the United States District Court for the Southern District of New York to enforce the French judgments under New York’s Uniform Foreign Money Judgment Recognition Act. The District Court found that the fashion shows at issue were public events and Viewfinder had a first amendment right to publish the photographs and as far as the designs were covered by copyright protection, these fell under the First Amendment “fair use” exception for the publication of newsworthy matters. The District Court found that enforcing the judgment would impinge upon Viewfinder’s free speech rights.

Issue: Whether the District court properly found that the French judgments were unenforceable under New York law.

Holding: This Court rejects Viewfinder’s contention that the French judgments violate public policy because they failed to analyze any “fair use” defense, even in the US, fair use is an affirmative defense that a defendant bears the burden of proving and Viewfinder didn’t present it. Also the record is too unclear to determine whether Viewfinder’s conduct would fall within the protection of the fair use doctrine so the judgment of the district court is vacated and remanded for further proceedings.

Reasoning: The Court begins with the statute and points out there are two steps in analyzing whether a judgment is unenforceable. The first is to identify the cause of action on which the judgment is based. This Court reasons that it cannot agree with Viewfinder’s contention that it is impossible to discern the causes of action on which the French judgments were based because the default judgments issued by the French court explicitly stated the statutes that Viewfinder violated and it is clear the French judgments were based on a finding of copyright infringement.
This Court then states the only issue left to consider in the two step analysis is whether a law that sanctions such conduct is repugnant to the public policy of New York. This Court recognizes that laws that are antithetical to the First Amendment will create such a situation and foreign judgments that impinge on First Amendment rights will be found to be repugnant to public policy. This Court finds that the District Court was wrong in concluding that the French judgments were unenforceable because they impinged on Viewfinder’s First Amendment rights because it did not conduct the full analysis. The Court reasoned that intellectual property laws co-exist with the First Amendment in this country and the fact that an entity is a news publication engaging in speech activity does not, standing alone relieve such entities of their obligation to obey intellectual property laws.
In deciding whether the French judgments are repugnant to the public policy of New York the District Court should first determine the level of First Amendment protection required by New York public policy when a news entity engages in the unauthorized use of intellectual property then it should determine whether the French intellectual property regime provides comparable protections. Because the fair use doctrine balances the competing interests of the copyright laws and the First Amendment, some analysis of that doctrine is generally needed before a court can conclude that foreign copyright judgment is repugnant to public policy. Factors that need be considered in determining fair use are: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for non profit educational purposes, 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.

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