Following the recent Supreme Court decision that recognizes Fumiko Negishi as co-author of 221 artworks signed by the Spanish artist Antonio de Felipe, we take a look at the judgment to analyze why the high court considered that Negishi’s personal execution of these works “gives rise to the embodiment of an original work eligible for protection”.
For an intellectual creation to be eligible for protection it must be original. However, determining whether a creation is original is not always evident. Is it sufficient to have conceived the idea? Is it the execution of the idea that makes the work creative? Where do you draw the line between mechanical and creative execution?
Supreme Court judgment 1338/2025, of September 30, 2025 explored these aspects and ended the dispute between the Japanese artist Fumiko Negishi and the Spanish pop artist Antonio de Felipe. The decision confirmed judgment 204/2021 by Madrid Provincial Appellate Court, of May 21, 2021, which recognized Negishi’s co-authorship of 221 artworks signed by De Felipe and ordered the artist to notify the buyers of Negishi’s co-authorship, to issue the corresponding certificates and to give notice of the co-authorship of the listed works by publishing the decision in an art magazine.
Fumiko Negishi and Antonio de Felipe had collaborated for years. Negishi would paint at de Felipe’s studio following his indications and in the afternoons would work from home producing her own art work.
According to the judgment, the instructions provided by De Felipe “encompassed requests by customers in the case of commissioned works, choosing the theme of the work, providing a photograph in the case of portraits, and even providing sketches of what he wanted painted.” Negishi would then paint the picture herself “alone in the studio”, while De Felipe traveled frequently to various parts of the world. De Felipe “at times also included his own […] lines, smears or graphisms in various different ways”.
The judgment rejected the argument that Negishi’s task was purely mechanical and concluded that “the final result emerged from an artistic symbiosis, born of the collaboration between two accomplished painters: Antonio de Felipe, whose talent lies in envisioning evocative scenes, and Fumiko Negishi, working in collaboration with him and even following his indications during the execution of each piece.
De Felipe filed a cassation appeal against the judgment, which the Supreme Court dismissed in full. The two most relevant arguments submitted by the appellant were the failure to recognize that the judgment by Madrid Labor Court 38, of February 13, 2017 was binding, and the failure to evidence the originality requirement in Negishi’s work.
Does the existence of an employment relationship between the parties have an impact when attributing authorship? The Supreme Court held that the employment relationship between De Felipe and Negishi — recognized by Madrid Labor Court 38 — did not prevent it from considering Negishi an author, since the civil jurisdiction has the power to do so. The fact that Negishi provided paid services within De Felipe’s organizational and managerial framework does not imply an assessment of her creative capacity, as reflected in Article 51 LPI, which recognizes the concept of the ‘author-employee,’ whose moral right of paternity is unwaivable and inalienable under Article 14.3 LPI.
But what evidence does the Supreme Court use to conclude that Negishi’s work is sufficiently original for her to be considered an author and therefore, have a moral right of paternity over the works?
Although De Felipe argued that the evidence submitted by Negishi was insufficient to invalidate the presumption of authorship of article 6.1 LPI, in the Supreme Court’s view, the two witnesses proposed by the artist — a former worker of the painting studio and her nephew — and an article in the press regarding statements made by De Felipe claiming that “she painted, but the concept and the ideas were mine” and that “painting is not just a matter of paintbrushes” evidence that Negishi “painted for hours alone in the studio” and participated in executing the paintings. The court also added that the plaintiff was a professional painter, that she received substantial remuneration and that she worked at the studio on a daily basis.
In addition, when analyzing the value as evidence of the expert report submitted by De Felipe, the Supreme Court referred to the Provincial Appellate Court’s arguments, according to which the fact that the personal styles of both artists had evolved following their professional collaboration did not interfere with the appreciation of Negishi’s artistic merit in the execution of De Felipe’s pop art style paintings, even though in her other creative sphere, her art style was abstract.
In light of the above, the judgment concluded that in the case of pictorial works, “it cannot be asserted, as the defendant contends, that exclusive importance should be attributed to the conception phase […]; rather, the quality of the personal execution — the actual painting of the canvas — as a concrete and material form of expression is of considerable importance.”
However, the Supreme Court pointed out that not all technical assistants can be considered the author of a painting that they have worked on, because in this case it was Negishi, alone in the studio, who embodied in the paintings, De Felipe’s ideas or sketches, “taking decisions and imprinting her personality on each painting”, even though she received instructions from De Felipe.
Accordingly, the Supreme Court, in line with the French Cour de Cassation decision in the Renoir v. Guino case cited in the judgment, rejected the argument that Negeshi’s contribution constituted a mechanical task, merely ancillary to another person’s work, or a simple technical execution.” On the contrary, it found that given the modus operandi in the execution of the works, the contributions by both artists were creative and that they were therefore both co-authors.
This case reaffirms that originality, as a condition of authorship in the sphere of intellectual property, is not confined to the conception of the work nor exclusively to its material execution. For originality to exist the artist must demonstrate that they have taken independent creative decisions that leave a personal imprint on the final result. Only then is it possible to determine whether their role goes beyond mere mechanical execution and reaches a creative level that warrants recognition of authorship.
Antonio Muñoz Vico y Carmen Vila
