Judge rules for S.F. art editor in suit over Picasso

A San Francisco art editor who reprinted and sold copyrighted photos of paintings by Pablo Picasso in a reference book had a right to do so under U.S. law and does not have to pay damages of $2.68 million ordered by a French court, a federal judge has ruled.

The High Court of Paris ruled in 2012 that the art editor, Alan Wofsy, had violated a previous order against making any commercial use of the photos, and ordered him to pay damages to the copyright holder. But U.S. District Judge Edward Davila of San Jose ruled Thursday that the order was not enforceable in a U.S. court because federal law allows publishers to use copyrighted works for different purposes than their creator, a doctrine known as “fair use.”

Wofsy’s book used less than 10% of the pictures in a photo catalog of Picasso’s paintings, was intended for a different market and did not compete with the catalog, Davila said. He said fair use promotes “criticism, teaching, scholarship and research” by allowing copyrighted works to reach wider audiences.

Neil Popovic, a lawyer for Wofsy, said the judge recognized that “what he was doing, generating a reference work for libraries, academic institutions, auction houses and art collectors, is different from trying to compete” with the catalog of copyrighted photos.

Lawyers for the copyright holder could not be reached for comment. They could appeal the ruling.

Nearly 16,000 photos of Picasso’s works, taken from 1932 to 1970, were published in a 22volume catalog after the artist’s death in 1973. In 1996, Yves de Fontbrune, a Frenchman who had purchased the publisher’s stock and obtained the copyright, sued Wofsy in France for reproducing some of the photos in “The Picasso Project,” a publication he offered for sale at a Paris book fair.

After a French court found copyright violations and prohibited Wofsy from making further use of the photos, de Fontbrune found copies of “The Picasso Project” in a bookstore and won a $2.68 million judgment from Paris’ High Court in 2012. He sued in San Francisco to enforce the judgment, a suit maintained by his wife and children after his death.

In Thursday’s ruling, Davila said U.S. law enforces foreign copyrights but “allows for the fair use of copyrightprotected works for criticism, commentary, news reporting, scholarship, research and other such purposes.”

In this case, he said, Wofsy’s book contains 1,492 of the nearly 16,000 photos in the original catalog, was directed at libraries and academic audiences, and did not affect the catalog’s value — after “The Picasso Project” was published in 1995, the price of the catalog rose to more than $100,000 in three auctions from 2007 to 2011, though it has fallen considerably since then.

“The two publications have distinctly separate markets and do not compete,” Davila said.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko