Ninth Circuit revives French copyright holder’s lawsuit against art publisher SF in dispute over Picasso images

A federal appeals court on Wednesday revived a French copyright holder’s claim for $2.68 million in damages from a San Francisco art publisher that published a reference book containing photos of some of Pablo Picasso’s paintings.

Nearly 16,000 photographs of Picasso’s works, taken from 1932 to 1970, were published in a 22-volume catalog after the artist’s death in 1973. In 1995, art publisher Alan Wofsy reproduced 1,492 photos in “The Picasso Project”. a publication he offered for sale at a book fair in Paris.

After a French court found copyright violations and banned Wofsy from continuing to use the photos, copyright holder Yves de Fontbrune found copies of Wofsy’s post in a bookstore . The Paris tribunal de grande instance awarded damages, and de Fontbrune then sued in California to enforce the judgment.

The damages were initially dismissed by a federal judge. In a 2019 ruling, U.S. District Judge Edward Davila of San Jose said Wofsy was protected by the U.S. legal doctrine of “fair use,” which allows publishers to display copyrighted works. author for uses other than those intended by their creator.

Davila noted that Wofsy’s 1995 book, “The Picasso Project”, contained photos of less than 10% of the paintings featured in the French catalog, and said the art publisher’s intended audience consisted of libraries and academic institutions, not art collectors.

But the U.S. Ninth Circuit Court of Appeals in San Francisco said Wednesday that Wofsy had failed to demonstrate that he was making fair use of the copyrighted material because his actual “use” of the paintings presented in the catalog was to copy them.

“The use of the copyrighted photographs was commercial and not transformative,” the court said in a 3-0 decision. The varying uses by future viewers are “largely irrelevant” to the legal issue, the court said, citing rulings in other copyright cases.

Wofsy also denied causing any harm to the copyright holder, noting that auction prices for the original catalog had increased since his book was published. In his 2019 decision, Davila said it was proof that “the two publications have separate markets and are not in competition.”

But the appeals court said the increase in the overall value of the copyrighted catalog “proves nothing about the market effect of the disputed photographs” that Wofsy published. US law presumes that the commercial publication of copyrighted material causes financial harm, the court said, and it is at least “highly debatable” that Wofsy could justify its actions on the basis of fair use.

The panel ordered that the case be sent back to Davila for further proceedings. The ruling was written by Joan Ericksen, a U.S. District Court judge in Minnesota temporarily assigned to the Ninth Circuit, and joined by appeals court judges Andrew Hurwitz and Lawrence VanDyke.

Bob Egelko is a writer for the San Francisco Chronicle. Email: [email protected]: @BobEgelko

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