January 05, 2017 Top Story

Courts May Consider Foreign Law Declarations on Motions to Dismiss

Federal court relies on plain language of Rule 44.1 to resolve issue of first impression

Matthew S. Mulqueen

District courts may consider foreign legal materials outside the pleadings when deciding motions to dismiss, according to the U.S. Court of Appeals for the Ninth CircuitThe opinion emphasizes that Federal Rule of Civil Procedure 44.1 treats foreign law determinations as questions of law—not fact. The decision helps explain how federal judges should treat foreign law, particularly at the motion to dismiss stage.

Portrait of a Painter

The dispute originated from the transcontinental attempts of a French national, Yves Sicre de Fontbrune, to protect his copyright in photographs of Pablo Picasso's artworks. An American art publisher, Wofsy, reproduced the Picasso photographs and triggered the lawsuit.

Cahiers d'Art, a French artistic and literary journal, originally published almost 16,000 photographs of Picasso's art taken by the artist's friend, Christian Zervos. The photographic collection, known as the "Zervos Catalog," became a universally recognized reference work of Picasso's artistic corpus. De Fontbrune purchased Cahiers d'Art's publisher's stock in 1979, thereby acquiring intellectual property rights in the Zervos Catalog under French law.

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