* The Honorable Leona rd B. Sand, United States District Judge for the Southern District of New York, sitting by

designation. 1 05-5927 Sarl Louis Feraud Int’l v. Viewfinder, Inc. UNIT ED S TAT ES COU RT OF A PP EALS FOR THE SE CON D CIR CUIT

_______________________________ August Term, 2006 (Argued: January

30, 2007 Decided: June 5, 2007)

Docket No. 05-5927-cv

_______________________________ SARL LOUI S FERAUD INTERNATIONAL,

Plaintiff-Appellant , S.A. PIERRE BAL

MAIN, Consolidated-Plaintiff-Appellant ,

v. VIEWFI NDER, INC., doing business as Firstview , Defendant-Appellee

.

_______________________________ Before: POOLER a

nd RAGGI, Circuit Judges , and SAND, Dist rict J udge

. *

_______________________________ Appeal from the United States District Court for the Southern District of New York (Ly nch, J. ) dismissin

g plaint iffs-ap pellants’ action to

enforc e two for

eign jud gments on the basi s that enforcement of the foreign judg ments would be repugnant to the public policy of New York under N.Y. C.P.L.R. § 5304(b)(4). Be cause the record before us doe s not permit us to determine2

whether enforcement of the fore ign judgments is repugnant to the public policy of New York, we VACATE the judgment of the district court and REMAND for fur ther proceedings. JAME S P. D UFFY, III (Joh n Bekia n, on t he bri ef), Ber g & Duffy L LP, La ke Success, NY, for Appellan ts

. STEVEN J. HY

MAN (Paul

H. Le vinson and

David Blasband, on the brief), McLaughlin & Stern LL P, New York, NY, for Appellee

. Wendy Seltzer, Brookly

n, NY for Amici Curiae Electro nic Frontier Foundation , Cente r for De mocrac y & Technol ogy , and the American Civil Liberties Union in support of Appellee

.

_________________________________ POOLER, Circu it J udge : Plaintiff s-appel lants Sar

l Loui s Ferau

d Inte rnationa l (“Fer aud”) a nd S.A. Pier

re Balmain (“Balmain”) appeal from the Septembe r 29, 2005, order of the United States District Court for the Southern District of New York (L ynch, J. ) dismissing plaintiffs’ action to enforce two judgmen ts issued b y th e Tribuna

l de gra nde insta nce de Pa ris (“the French Judgment s”) ag ainst defendant-appellee Viewfinder , Inc. (“Viewf inder”). Plaintiffs challenge the district court’s conclusion that enforcement of the Frenc h Judgments would be repugnant to the public policy of New Yor k under N .Y. C.P.L .R. § 5304( b)(4) be cause it

would viola

te Viewf inder’s First Amendment rights. Because the district court did not conduc t the full analysis nece ssary to rea ch this conc lusion, we

vacate its order and rema nd for fu rther pr oceedin gs cons istent with

this opinion. BACKGROUND Plaintiffs-appellants Feraud and Balmain ar e French corporations that design hig h-fashion clothing and other items for women. Defendant-appellee Viewfinder is a Delaware corporation3

with a principal place of business in New York. Viewfinder operates a website called “firstView.com,” on which it posts photographs of fashion shows held by designers around the world, including photographs of plaintiffs’ fashion shows. Donald Ashby, the pre sident of Viewfinder, is a professional fashion photogra pher. Viewfinder sty

les itself as an Internet fashion magazine akin to the online version of Vogue. The firs tView we bsite con tains both photographs of the current season’s f ashions, which may be vie wed only upon subscription and payment of a f

ee, and photographs of past collections, which ar e available for free. An annua l subscription to firstView costs $999. See http://www.firstview.com/subscribe_info.php (last visited June 1, 2007). Users can also view the content for one hour for $5.95. See http://www.firstview.com/subscribe.php ( last visited June 1, 2007). Viewfinder does not sell clothing or designs. In January

2001, Feraud and Balmain, along with several other design houses, each f iled suit against Viewfinder in the Tribunal de gr ande instance de Paris seeking money damages from Viewfinder for alleged una uthorized use of their intellectual property and unfair competition. These civil actions stemmed from Viewfinder display ing photographs of the designe rs’ fashion shows, which revealed designs from their upc oming collection, on the firstView.com website. Viewfinder was served in New York in a ccordance with the terms of the Hag ue Convention on the Service of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Viewfinder failed to respond to the complaints, however, and therefor e, on May 2, 2001, the French court issued default judgment against Viewfinder . The French court found that plaintiffs’ “re ady-towear” and “haute couture” collections from 1996-2001 were available on the firstView .com website. The cour

t further found tha

t Viewfin der’s po sting of

these pho tographs of plai ntiffs’1 In the district c ourt, Vie

wfinder argue d that the

French Judgment s were not final be cause of the astreint

e . Plaintiffs then commenced proceedings befor e the Juge de l’exécution of the French court to reduce the astreint e to a fixed amount. Viewfinder no longer contends that the French Judgments are not final. 4 designs was “without the necessary authorization” and thus “constitute[d] counterfeit and violation o f roy

alties pur suant to a rticles L 716-1 and L 122 -4 of the Inte llectual

[P]roperty Code.” The court also found with respect to each of the plaintiffs that Viewfinder had committed “parasitism” under French law bec ause it had “take[n] advantage of plaintiff’s reputation and commercial efforts crea ting confusion between the two companies.” The French court ordered Viewfinder to remove the offending photographs, and aw arded damages of 500,000 francs for each plaintiff, costs of the a ction, and a fine (“ astreint e ”) of 50, 000 fran

cs a day for eac h day Viewfinder fai led to com ply with the ju

dgment. 1 On Octobe

r 6, 2003, Viewfinder appe aled the se judgm ents to the Cour d’a ppel de Pa

ris, but subsequently withdrew its appea l without opposition after plaintiffs filed their brief. The French appellate court acc ordingly dismissed the appe al in February 2004. In December

2004, plaintiffs filed separate complaints in the United States District Court for the Southern District of New York to enforce the Fre nch Judgments. Plaintiffs sought enforcement under New Yor k’s Uniform F oreign

Money Judgment Re cogniti on Act, wh ich provi des that, subject to certain exceptions, foreign judgments that are “fina l, conclusive and enforceable” in the countr y where rendered are deemed c onclusive between the parties and enforce able by U.S. courts. N.Y. C.P.L. R. §§ 5302, 5303. The district c ourt cons olidated these actions and a

lso gra nted plai ntiffs’ request for an order of attachment. Federal jurisdiction is based on diversity of citizenship. On January 18, 2005, Viewfinde r filed a motion to dismiss or, in the alternative, a motion2 On appeal, Viewfinder does not challeng e the district court’s rejection of its other

ground s for dismi ssal. 5 for summa

ry judgmen t and a mot

ion to vac ate the a

ttachmen t order. Viewfinder rai sed a var iety of arg uments in it s motion pa

pers, one of which was foun d meritor ious by the distri ct court

. 2 The district court found that enforcing the Fre nch Judgments would be repugnant to the public policy of New York because it would violate Viewfinder ’s First Amendment rights. See Sarl L ouis Feraud Int’l v. Vie

wfinder Inc. , 406 F. Supp. 2d 274, 281 (S.D.N.Y. 2005). Specifically , the district c ourt foun

d that the fashion s hows at iss

ue were public ev ents and V

iewfinde r had a F irst Amendment right to publish the photographs at issue. Id. at 282-83. Thus, as the district court conclude d, the “F irst Amen dment simpl

y do es not per

mit plaintif

fs to stag e public e

vents in which the general public has a consider able interest, and then control the way in which information about those events is disseminated in the mass media.” Id. at 285. The district court also stated that to the extent that plaintiffs’ designs were protected by copyrig ht, “the copyrig

ht law similarly provides, as a ma tter of First Amendment necessity , a ‘fair use’ exception for the publication of newsworthy ma tters.” Id. at 284. Based on its conclusion that enforcing the judgment would impinge upon Viewfinder’s fre e speech rights, the district court dismissed the action and vacated the order of attac hment. Id. at 285. Pla

intiffs f iled a time ly notice of

appeal. DISCUSSION The question presented by this appeal is whether the district court properly found that the French Judgments were unenforc eable under New York law. I n order to address this question, we begin with the languag e of the relevant state statute: “A foreig n country judg

ment need not be recognized if . . . the cause of action on which t

he judg ment is bas ed is rep

ugnant to the publ ic6

policy of this state.” N.Y. C.P.L .R. § 5304(b)(4) (emphasis added). As the plain langua ge of the statute makes clear, the first step in analy zing whether a judgment is unenforcea ble under Section 5304(b)(4) is to identify the “ cause of action on which the judgment is based.” The district court never identified the French statutes that underlie the judgments at issue in this case. Nor does Viewfinder do so in its submission. In fact, Viewfinder contends that “there is simply no wa y for this Court to know what substantive law was actually applied in France and on what gr ounds Defendant was found liable.” See Br. of Appellee Viewfinder, at 48. We find this arg ument curious c onsideri

ng that V iewfinde r, as the party invoking Section 53 04(b), ha

d the burd

en to prove that the public policy e xception applied. See, e .g. , CIBC Mellon Trust Co. v. Mora Hotel Corp. , 743 N.Y.S.2d 408, 423 (1st Dep’t 2002) (“It is undisputed that defe ndants bear the burden of proving these discretionary grounds for non-recog

nition [of a foreign judgment].”); Kim v. Coop. Centrale Raiffeisen-Boerenleenba nk B.A. , 364 F. Supp. 2d 346, 352 (S.D.N.Y. 2005) (“Recognition may be denied if the opposing party can prove . . . that the foreign judg ment is repug nant to the

public pol icy

of this sta

te.”) ( interna

l quotation

marks omit

ted); Bridgeway Corp. v. Citibank , 45 F.Supp. 2d 276, 286 (S.D.N.Y. 1999) (“[T]he defendant opposing enforc ement ha s the burd en of pro ving tha

t a discre tionary basis for non-rec ognition

pursuant to CPLR § 53 04(b) ap

plies.”) . In a

ny e vent, we cannot a gree w ith Viewf inder’s contenti on that it is impossible to discern the causes of action on which the Frenc h Judgments were based. The default judgments issued by the French court explicitly state that Viewfinder’s actions violated “ar ti cle s L 71 6-1 and L 122 -4 o f th e Int ell ect ual Pro per ty Co de. ” Ar ti cle L 122 -4 i s i n Bo ok I, Title II , Chapter II

of the French I

ntellectual Property Code, w hich are entitled “Copy

right,” “Authors’ Rights,” and “Patrimonial Rights,” respectively

. See Code de la propriete7

intellectuelle art. L 122-4 (F r.), available at http://www.legifrance.gouv.fr . Article L 122-4 provides: “Any c omplete or partial performance or re production made without the consent of the author or of his successors in title or assigns shall be unlawful.” Id. This is analogous to the United States Copyright Ac t, which defines a copy

right infringer as one “who violate s any of the exclusive rights of the copy right owner,” 17 U.S.C. § 501, including the rights of re production, performance, and public display

. 17 U.S.C. § 106. Under French copy right law, the “creations of the seasonal industries of dress and articles of fa shion” are entitled to copy right protection. Code de la propriete intellectuelle art. L 112-2 (Fr.), available at http://www.legifrance.gouv.fr

. The French court found that Viewfinder ’s publication of numerous photographs depicting plaintiff s’ desig n collec tions viola

ted plain tiffs’ c opy

rights. Further

more, the French Judgment s concluded that Viewfinder’s reproduction and publica tion of plaintiffs’ designs were “without the necessary

authorization.” Thus, it is apparent that the French Judgments were base d in part on a findi ng of c opy

right in fringe

ment. We cannot second-guess the Frenc h court’s finding that Viewfinder’s actions wer e “without the necessary

authorization.” Viewfinder had the opportunity to dispute the factual basis of plaintiffs’ claims in the French court, but it chose not to respond to the complaint. As this cour t has held : “By

default ing [in the

foreig n adjudic ation], a d

efenda nt ensure s that a judgment will be entered against him, and a ssumes the risk that an irrevocable mistake of law or fact may unde

rlie that judgment.” Ackermann v. Levine , 788 F.2d 830, 842 (2d Cir. 1986) ; see also Clarkson Co. v. Shaheen , 544 F.2d 624, 631 (2d Cir. 1976) (“A foreign judg ment may not be colla terally attacke d ‘upon the

mere as sertion o f the par ty that the jud

gment w as erro neous in law or in fact .’”) (q uoti ng Hilton v. Guyot , 159 U.S. 113, 203 (1895)). Thus, for the purposes of3 For this reason, we reject the arg ument advanced by

Viewfinder and amici that holding Viewfinder liab le under

Frenc h copy

right la ws would be

repug nant to pub lic policy

because plaintiffs’ dress designs are not copy rightable in the United States. While it is true that United States law does not extend copyrig ht protection to dress designs, see Knit waves, Inc. v. Lol lytogs Ltd. , 71 F.3d 9 96, 1002 ( 2d Cir. 199 5) (“[C]loth es are n ot copy righta ble.”), Viewfinder pre sents no argument as to why

this distinction would offend the public policy of New Y ork. As the district court found in rejecting this argument below – whic h Viewfinder has not challenged on 8 this action, we must accept that Viewfinder’s conduct constitutes an una uthorized reproduction or perf ormance of plainti ffs’ co

pyr ighted work infr

inging on plaintif

fs’ intel lectual p

roperty rights, and the on

ly q uestion to consider is whethe

r a law th at sanct

ions such c onduct is repugnant to the public policy of New York. The “pub lic policy

inquiry rarely results in refusa l to enfor ce a judg ment unle ss it is inherently vicious, wicke d or immoral, and shocking to the prevailing moral sense.” Sung Hwan Co. v. Rite Aid Corp. , 7 N.Y.3d 78, 82 (N. Y. 2006) ( interna l quotation

marks omit

ted); see also Ackermann , 788 F.2d at 841 (“A judgment is unenforcea ble as against public policy to the extent that it is repugnant to fundamental notions of what is decent and just in the State where enforcement is sought. The standard is high, a nd infrequently met.” ) (internal quotation marks and citations omitted). Furthermore, “it is well established that mere diverg ence from American procedure does not render a for eign judgment unenforcea ble.” Pariente v. Scott Meredith Literary Agency , Inc. , 771 F . Sup p. 609 , 616 ( S.D. N.Y. 1 991). “Under New Yor k law [ ,] . . . forei gn decrees and proceeding s will be given respect . . . even if the result under the foreign proceeding would be different than under American law .” Id. (alterations in original; internal quotation marks omit

ted); see also Ackermann , 788 F.2d at 842 (“We are not so provincial as to say that every solution of a pr

oblem is wrong because we deal with it otherwise a t home.”) (quoting Loucks v. Std. Oil Co. , 224 N.Y. 99, 111 (1918) (Cardozo, J.)). 3 Thus, “[o]nly in clear-cut ca sesappeal – copy right laws are not “matters of strong moral principle” but rather represent “economic legislation based on policy decisions that assign rights based on assessments of what legal rules will produce the gre atest economic good for society as a whole.” Viewfinder , 406 F. Supp. 2d at 281. 9 ought [the public policy exception] to avail defendant.” Ackermann , 788 F.2d at 841 (alteration in original; internal quotation marks omitted). Laws tha t are an tith etica l to t he Firs t Amen dment will create such a situ ation . Forei gn judgmen ts that impin

ge on F irst Amendment rig hts will be

found to be

“repug nant” to p ublic policy. See, e.g., Bachchan v. I ndia Abroad Publ’ns Inc. , 585 N.Y. S.2d 661, 66 2 (N.Y. Su p. Ct. 1992) (“[I]f . . . the public policy to which the foreign judgment is repug nant is embodied in the First Amendment to the United States Constitution or the free speech guar anty of the Constitution of this State, the refusal to recognize the judgment should be, and it is deemed to be, ‘constitu tionally mandator

y.’ ”); Yahoo!, Inc . v. La

Lig ue Contre Le Ra cisme et L ’Antisem

itisme , 169 F. Supp. 2d 1181, 1189-90 (N.D. Cal. 2001) (holding unenforcea ble French judgment render ed under law proh ibiting N azi propa

ganda because such law would viola

te the Fi rst Amendment), rev’d on other grounds , 433 F.3d 1199 (9th Cir. 2006) (in banc). The district court in this case reached the conclusion that the Fre nch Judgments were unenforceable be cause they impinged on Viewfinder’s First Amendment rig hts. In doing so, however, it appe ars not to have conducted the full analy sis for us to affirm its decision. The distr ict cour t’s decis ion appea

rs to rest on the ass

umption tha

t if Viewf inder is a news mag azine re

porting on a public

event, th en it has a

n absolute

First Ame

ndment de fense to any attempt to sanction such c onduct. The First Amendment does not provide such categ orical protection. Intellectual proper ty laws co-e

xist with the First Amendment in this country, and the10

fact that an entity is a

news publication engaging in spe ech activity doe s not, standing alone, relieve such entities of their obligation to obey intellectual property

laws. While an entity’s status as a news publication may be highly pr

obative on certain relevant inquiries, such as whether that entit y ha s a fair u se defe

nse to copyr

ight inf ringem ent, it doe s not rend er that e ntity immune fr

om liability

under int ellectua l proper ty la ws. I n rejec ting a F irst Amen

dment def

ense to a l aw su it by a co nf

id en ti al in fo rm an t a ga in st a n ew sp ap er un de r a pr om is so ry e st op pe l t he or y, the Supreme Court stated: This case . . . is . . . controlled . . . by the . . . well-established line of decisions holding t hat generally

applica ble laws d

o not offe nd the Fir st Amendme

nt simply because their en forcem ent aga

inst the pr

ess has in cidenta l effects on its abi lity

to gather and report the news . . . . The press may not with impunity break and enter an offic e or dwe lling to g ather ne ws. . . . Th e press, like othe rs intere sted in publishing, may not publish copy righted material without obey ing the copy

right laws. . . . It is, therefore, be yond dispute that [t]he publisher of a newspaper has no special immunity from the application of g eneral laws. He has no special privilege to invade the rights and liberties of others. . . .

. . . . . . . The dissenting opinions suggest that the press should not be subject to any law, including copy

right law for example, which in any fashion or to any de gree limits or re stricts th e press’ right to report tr uthful inf ormation. The Fir st Amendment does not grant the press such limitless protection. Cohen v. Cowles Media Co. , 501 U.S. 663, 669-671 (1991) (internal quotation marks and citations omitted; a

lteratio n in orig inal); see also Harper & Row, Publishers, I nc. v. Nation Enters. , 471 U.S. 5 39, 557 (1 985) (“T he fact that the w ords the a

uthor has chosen to

clothe hi s narrative may

of themselves be ‘newsworthy ’ is not an independent justification for unauthorized copy ing of th e author ’s expres sion prior to publica

tion.”); Zacchini v. Scripps-Howard Br oad. Co. , 433 U.S. 562, 574-75 (1977) (“Wherever the line in particular situations is to be drawn betwee n media r eports that are p rotecte d and those that are not, we a re quite sure tha t the Fir st11

and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without his consent. The Constitution no more prevents a State from requiring respo ndent to com pensa te pet itio ner for broad casti ng his act on telev isio n than it wo uld p rivil ege respondent to film and broadcast a copy righted dramatic work without liability to the copyrig

ht owner.” ); Int’ l News Ser

v. v. Assoc iated Pre ss , 248 U.S. 2 15, 239-4 0 (1918) ( Associat ed Press may be held liable unde

r unfair competition laws for copy ing plaintiff’s news articles published on bulletin boards and then selling them to competitors). Because the First Amendment does not provide news entities an exemption from compliance with intellectual property laws, the mere fact that Viewfinder may

be characterized as a news mag azine would not, standing alone, render th e F re nc h J ud gm en ts re pu gn an t t o p ub li c p ol ic y. Rather, because Section 5304(b) requires c ourts to examine the cause of action on which the foreign judgment was based, the district court should have analy zed whether the intellectual property re gime upon which the French Judgments were based impinged on rights protected by the First Amendment. This is consistent with the two-step analy sis courts apply in deciding whether foreign libel judgments are repugnant to public policy : (1) identifying the protections deemed constitutionally mandatory for the defamatory

speech at issue, and (2) determining whether the foreign libel laws provide compa rable protection. See, e .g. , Bachchan , 585 N.Y.S.2d at 663-65 ; Abdullah v. Sheridan Square Press, Inc

. , No. 93 Civ. 2515, 1994 WL 419847, at *1 (S.D.N.Y. May 4, 1994). F or instance, in Bachchan , the defamatory speech at issue related to a matter of public concern. Beca use the First Amendment requires a plaintiff to bear the bur den of proving falsity w

hen the speech involves matters of public concern, the N ew York court refused to enforce a British libel judgment because the British laws failed to provide this protection,4 We note tha t in some ci

rcumstan ces the r epugna ncy of the fo reign j udgmen

t may be so patently obvious that a court ne ed not engage in a deta iled analysis of the for

eign law at issue. This case, however, does not present such a sce nario. 12 placing the burden of proof on the defe ndant to prove the truth. Bachchan , 585 N.Y.S.2d at 664. The same analy sis is appropriate here. In de ciding whether the French Judgments a re repugnant to the publ ic policy

of New Y ork, the d

istrict c ourt shoul d first de termine t he level of First Amendment protection required by New York public policy

when a news entity

engages in the unauthorized use of intellectual property at issue here. Then, it should determine whether the Frenc h intellec

tual prop erty

regime provides compara ble prote ctions. 4 With reg ard to the

protect ions provi ded by

the Firs t Amendme

nt for the unauthor ized use of copy righte d materia

l, this cou rt has he ld that ab sent extra ordinar y c ircumsta

nces, “t he fair use doctrine encompasses all claims of first amendment in the copy right field.” Twin Peaks Prods., Inc. v. Publ’ns I

nt’l, Ltd. , 996 F.2d 1366, 1378 (2d Cir. 1993) (internal quotation marks omitted) (holding that book c ontaining

detailed syn opses of e pisodes of

television show “Tw

in Peaks” would, ab sent a fa

ir use de fense, i

nfring e copy

right on television show); see also , Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, I nc. , 166 F.3d

65, 74 (2d

Cir. 1999)(“We hav e repea tedly rejected First Amendment challenge s to injunctions from copyright infr ingement on the ground that First Amendment concerns are protected by and coe xtensive with the fair use doctrine.”); Wainwright Sec., Inc. v. Wall St. Transcript Corp. , 558 F.2d 91, 95 (2d

Cir. 1977)(“Confli cts between interests protected by the first amendment and the copy right laws thus far have been resolved by a

pplication of the fair use doctrine.”). Bec ause the fair use doctrine balances the competing interests of the copy right laws and the First Amendment, some analy sis of that doctrine is gene rally needed before a court c an conc lude that a forei gn copy

right ju dgment i s13

repug nant to pub lic policy . Facto rs that mus t be consi dered in determin ing fai r use ar e: (1) the purpose and character of the use, including whether such use is of a commerc ial natur

e or is fo r nonprof

it educa tional pur poses; (2) the nature of the copy righted work; (3) the amount and substantiality of the por tion used in relation to the copyrig hted work as a whole; and (4) the effect of the use upon the potential marke t for or value of the copy

righted work. 17 U.S.C. § 1 07. As the

Supreme C ourt has e

xplained: “ The task [o f apply ing the f air use doctrine ] is not to be s implified with brig ht-line r ules, for the statut e, like th e doctri

ne it recog nizes, ca lls for ca se-by

-case a naly sis. . . . No r may

the four statutory factor s be trea

ted in isolation, one from another. All are to be explored, and the results weig hed together, in light of the purposes of copy

right.” Campbell v. Acuff-Rose Music, Inc. , 510 U.S. 569, 577-578 (1994) (internal citations omitted). In this case, the district court dispensed with the issue of f air use in a single sentence: “Similarl y, e ven wer e plaintif fs’ desig ns copy righta ble, the c opy

right la w similarl

y pr ovides, a s a matter of First Amendment necessity , a ‘fair use’ exception for the publication of newsworthy matters.” Viewfinder , 406 F. Supp. 2d at 284. To the extent the district court believed that Viewfinder’s us e was ne cessar ily f air use b ecause

it was publ ishing “

newswor thy matters, ” this

was erroneous. See , e.g. , Harper & Row , 471 U.S. at 557 (finding that The Nation’s use of verbati m quotes f

rom upcom

ing Ger ald Ford memoir re gardin

g Water gate sc andal wa s not fair

use even though ma

terial r elated to matter of public importance ); see also Roy Exp. Co. Establish ment v. Colu

mbia Bro ad. Sy s. , 672 F.2d 1095, 1099 (2d Cir. 1982) (rejecting arg ument from CBS t

hat a “g eneral ized Firs t Amendme nt privile ge” re gardin

g “new sworthy

events” preclud ed liabili ty f or copy right in fringe

ment); Iowa

State Univ . Resear

ch Found ., Inc. v. Am.5 On appeal, plaintiffs contend that the district court made a clea rly errone ous factual finding that only a “ few isolated photographs” were poste d by Viewfinder . We do not read the district court’s opinion to have made this finding. While it is true that the district court stated that “onl y is olated sti ll photog

raphs” w ere post

ed by Viewfinder, the

district c ourt made

this reference when distinguishing the posting of photographs from the posting of a videotape of the entire fashion show. See Viewfinder , 406 F. Su pp. 2d at 2 84 (“De fendant has publis hed only isolated s till photog

raphs of the fash ion show, n

ot a video tape of t

he entir e event . . . .”). T

here is no dispute

that View finder o nly

posted pho tographs of the f ashion show and did n

ot post a videotape of the entire event. However, to the e xtent the district court’s use of the word “isolate d” was me ant to imply that only a few photogra

phs or only

a few ite ms of plain

tiffs’ collecti ons were

display ed on fir stView.c om, the re cord con tains insuf

ficient i nformati on to support such a finding. 14 Broad. Cos. , 621 F.2d

57, 61 (2d

Cir. 1980)(“The f

air use d octrine is not a lic ense for

corpora te theft, empowering a court to ignore copyrig ht whenever it determines the underly ing work contains material of possible public importance.”) . Whether the material is newsworthy is but one factor in the fair use analy sis. While both p arties ur

ge this c ourt to re solve the issue of f air use , the rec ord before us is insufficient to determine fair use as a matter of law

. See Harper & Row , 471 U.S. at 560 (noting that an a ppellate court ne ed not re

mand “[w]he

re the di strict co

urt has f ound facts suffic ient to evaluate each of the statutory factors” for fair use). For instance, the record is unclear as to the percentage of plaintiffs’ de signs that were posted on firstView.com. While the Frenc h Judgments do provide some information as to the number of photographs posted by Viewfinder, that information is both incomplete and unclear because it does not indicate wha t proportion of plaintiff s’ desig ns were reveal ed by

these pho tographs. 5 Such factual findi ngs are releva nt in det erm in in g wh eth er V iew fin der ’s u se w oul d co nst it ut e “f air use ” un der Uni ted St ate s l aw. If the publication of photographs of copy righted material in the same manner as View finder has done in this case would not be fair use under United States law, then the F rench intellectual6 Criminal proceedings were initiated in Franc e against certain Viewfinder employees for the same conduct at issue in this case. I n June 2005, the French criminal court found each of the defendants not guilty

.

7 We reject Viewfinder’s contention that the Fre nch Judgments violate public policy because they

failed to analyze a

ny “fair use” defense. Even in the United States, fair use is an affirmative defense that a defe ndant bears the burden of proving. See Infinity Broad. Corp. v. Kirkwood , 150 F.3d

104, 107 ( 2d Cir. 199 8) (“Sinc e fair u se is an a ffirmat ive defe nse to a c laim of infringement, the burden of proof is on its proponent.”). V iewfinder defaulted before the French court, and thus chose not to avail itself of the opportunity to present any a

ffirmative defenses it may ha

ve under French law. 15 property re gime sanctioning the same conduct ce rtainly would not be repug nant to public policy. Similarly, if the sole reason that View finder’s conduct would be permitted under United States copyrig ht law is that plaintiffs’ dress designs are not copy rightable in the United States, the French Judgment would not appear to be repug nant. However, without further development of the rec ord, we c annot re ach any conclusi ons as to w

hether V iewfinde r’s cond uct would fall within the protection of the fair use doctrine. The record is similarly

unclear as to the manner of protection aff orded plaintiffs’ fashion shows by Fre

nch law as well as the protections afforded to alleg ed infringers gener ally, and photographers specifically , under French law. The minutes of the Fr ench criminal judgment contained in the record 6 sugge st that pho tographers may well enjoy so me prote ction. The se minutes ind

icate tha t the “L aw cove

rs a rig ht to the be

nefit of t he fashi on desig

ners tha t coexists with that of the photographers .” Memorandum from Jean-Marc Fedida to Don Ashby , June 17, 2005, at 3 (emphas is added) . Moreove r, Artic le L 1 22-5(3)of the Fr ench I ntellect ual Prope rty Code permits unauthorized use of copy righted material in limited circumstances similar to uses deemed “fair use” under United States law. See Code de la propriete intellectuelle art. L 122- 5(3) (Fr.), available at http://www.legifrance.gouv.fr

. 7 Whether s uch prote ctions ar

e suffic iently16

comparable to that required by the public policy of New York is a question best addressed in the first instance by the district c ourt on a fully-deve loped record. CONCLUSION For the foregoing r

easons, we vacate the judgment of the district c ourt and remand for further proceedings consistent with this opinion. Because we remand for a new analy sis by the district court, we do not address the other grounds of a lleged error raised by

plaintiffs.