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A French court’s award of damages to fashion designers who claimed that a U.S. Web site operator posted their designs on the Internet without authorization is not enforceable in American courts, a federal judge has ruled. Southern District of New York Judge Gerard Lynch said enforcement of the default judgment entered against the American company would be “repugnant” to the First Amendment in Sarl Louis Feraud International v. Viewfinder, Inc., 04 Civ. 9760. Viewfinder is a Delaware corporation that maintains fashion Web sites containing photos of fashion shows and other fashion industry information. The plaintiffs, Sarl Louis Feraud International and S.A. Pierre Balmain, claimed Viewfinder made unauthorized use of their intellectual property and engaged in unfair competition by posting on its site, Firstview.com, photos of the companies’ models from fashion shows. Viewfinder failed to answer the complaint to appear at the Tribunal de Grande Instance de Paris and the French court issued a default judgment in favor of the plaintiffs in May 2001. Lynch said it was obvious that Viewfinder’s activities fall within the protections of the First Amendment. “Fashion shows are a matter of great public interest, for artistic as well as commercial purposes,” he said. “These shows are open to the public, including the press — indeed, defendant’s employees and agents were able to take the photographs at issue because they were given access by invitation … and the extensive coverage given to such events in various mass media makes clear that there is widespread public interest in these matters.” Lynch said a conflict arises when U.S. courts are asked to enforce foreign judgments that do not have First Amendment protections. “Many democratic countries, which share our general commitment to human rights and maintain free and open societies in which freedom of speech and thought is fully respected, differ from us in the resolution of certain questions involving the balance between freedom of expression and the maintenance of ordered liberty, particularly in areas where freedom of expression may be in tension with the protection of other human rights, such as equality or human dignity,” Lynch said. “Even in those areas, however, where reasonable people and decent societies may reasonably disagree, American courts have recognized that foreign judgments that run afoul of First Amendment values are inconsistent with our notions of what is fair and just, and conflict with the strong public policy of our state.” The judge noted that the First Amendment protects speech that can be banned in other democratic countries, and courts in the United States have refused to enforce foreign judgments such as one that restricted access to Nazi propaganda in France. American courts also have refused to recognize English libel judgments that would be inconsistent with the U.S. Constitution or the laws of the states. The plaintiffs said the defendant’s conduct might not “possess sufficient communicative elements to bring the First Amendment in to play.” For this proposition, they cited language from the U.S. Supreme Court’s decision in Spence v. Washington, 418 U.S. 405 (1974), where the Court said the issue is whether “an intent to convey a particularized message” is present, “and the likelihood was great that the message would be understood by those who viewed it.” But Lynch said “ Spence is wholly inapposite here.” “That case involved flag burning, and presented the difficult question of when conduct that would otherwise violate the law having no relation to expression nevertheless derives communicative content because it is intended and understood to convey a non-verbal message,” he said. “The Supreme Court has never applied the Spence test, as plaintiffs would have this court do, to decide whether the publication of a verbal news item or a photograph has sufficient expressive content to warrant First Amendment protection.” IMAGES PROTECTED The plaintiffs also argued that the photos are not covered by the First Amendment because the Web site provided “virtually no news or information … about any of the designers’ collections other than the photos and, in some cases, brief biographies of the designers.” But Lynch did not see it the same way. “A picture, as the clich� would have it, is worth a thousand words, and the defendant’s decision to forgo an effort to describe the designers’ creations verbally in favor of a more efficient visual presentation does not defeat protection,” he said. James P. Duffy III of Berg & Duffy in Lake Success, N.Y., represented the fashion designers. Steven Hyman and Paul H. Levinson of McLaughlin & Stern represented Viewfinder.

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