US-France court battle tied to Picasso comes to a head

A French family holding rights to photographs of Pablo Picasso's artwork won a major victory against an American art editor in US federal court (AFP Photo/Atilla Kisbenedek)
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Washington (AFP) - A French family holding rights to photographs of Pablo Picasso's artwork won a major victory against an American art editor in US federal court this week, in a 20-year legal battle that has outlived the plaintiff.

A lawyer for American art publisher and dealer Alan Wofsy, who reproduced the photographs in volumes he sold, told AFP on Wednesday he would seek to have the court hear the case again, so the court fight may not be over.

Plaintiff Yves Sicre de Fontbrune never saw his hard-fought victory come to fruition. He died last year, leaving his wife and three children to continue the battle with Wofsy.

The saga has its roots in the strong ties between the celebrated Spanish painter, sculptor and printmaker with art critic Christian Zervos, who founded the prestigious Cahiers d'art journal.

The Greek-born Zervos, who died in 1970 in Paris, produced a massive catalogue of more than 16,000 photographs of Picasso's artwork, which Cahiers d'art published as 33 volumes between 1932 and 1978.

After Zervo's death, Yves Sicre de Fontbrune, a former director of the journal, bought the intellectual property rights to "the Zervos," now widely recognized as the definitive catalogue of Picasso's work.

In the 1990s, Wofsy published two volumes on Picasso that reproduced several photographs from "the Zervos."

De Fontbrune took Wofsy to court in 1996, first in the French legal system, accusing him of counterfeiting.

A grouping of French national museums, the Reunion des musees nationaux, and Picasso's heirs joined the lawsuit, which was far more prolonged than any of the protagonists expected.

Lower court judges said the photographs and catalogue were not protected by intellectual property rights, but they were overruled on appeal.

- Obscure French legal tool -

In 2001, the Paris Court of Appeal ordered Wofsy to pay 800,000 francs (about 122,000 euros, or $136,850) -- months before euro banknotes and coins were introduced in France -- in damages to de Fontbrune, plus an added 10,000-franc judgment for each subsequent reproduction of the photographs.

The special punitive judgment triggered a second legal battle, this time fought both in Paris and across the Atlantic.

With Wofsy failing to comply with the order, de Fontbrune filed again and was awarded two million euros ($2.25 million) in 2012 linked to the French penalties.

De Fontbrune then took the award to court in California seeking enforcement and payment.

But Wofsy argued that the French judgment, which is called an "astreinte" in French and has no exact equivalent in American law, amounted to a simple penalty by the French government and could thus not be officially recognized and enforced in the United States.

In 2014, a San Francisco court agreed with Wofsy.

But de Fontbrune's estate appealed and, on Tuesday, Judge M. Margaret McKeown of the US Court of Appeals for the Ninth Circuit found that "the astreinte was not essentially penal in nature... and accordingly the district court erred in concluding otherwise."

"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," she explained.

"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."

But for Wofsy, the fight is not over just yet.

"We do expect to petition for rehearing," his international arbitration lawyer Neil Popovic told AFP.

"Among other things, it appears that the Ninth Circuit's opinion does not account for the disproportionality between the amount of the astreinte and any alleged harm suffered by the plaintiff."

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