{"id":10942,"date":"2021-02-01T17:08:00","date_gmt":"2021-02-01T16:08:00","guid":{"rendered":"https:\/\/blogip.garrigues.com\/?p=10942"},"modified":"2021-02-01T17:08:00","modified_gmt":"2021-02-01T16:08:00","slug":"final-act-will-the-supreme-court-lend-bullfighting-a-helping-hand","status":"publish","type":"post","link":"https:\/\/blogip.garrigues.com\/en\/intellectual-property\/final-act-will-the-supreme-court-lend-bullfighting-a-helping-hand","title":{"rendered":"Final act: will the Supreme Court lend bullfighting a helping hand?"},"content":{"rendered":"

For many, bullfighting is an art, but this does not necessarily mean that a bullfight is a work in which the bullfighter holds a copyright: the Supreme Court is to decide whether a bullfight can be an original work and is therefore protectable by copyright. <\/strong><\/p>\n

The Supreme Court has ruled on the copyright protection of the most bizarre expressions, including a DIY catalogue<\/a> or the instructions for a shower screen<\/a>. However, against all odds, it has never had the chance to decide on whether a bullfight can be protected by copyright. The ruling of November 18, 2020<\/a> reveals that this is about to change.<\/p>\n

Act one: registration of the bullfight<\/strong><\/p>\n

Throughout history, bullfighting has been an endless source of inspiration for many of our artists. In principle, it would seem that nobody can feasibly doubt the originality <\/em>of the paintings by Goya or Zuloaga, nor Act IV of Bizet\u2019s Carmen<\/em>. But if we focus on what is being represented in these works \u2013 bullfighting \u2013 doubts about their originality, <\/em>within the meaning of the Intellectual Property Law (IPL), start to arise.<\/p>\n

These are precisely the doubts that led the Intellectual Property Registry of Extremadura to refuse to register a bullfight by a bullfighter from Extremadura, a decision that was confirmed<\/a> by Badajoz Commercial Court no. 1. The bullfight in question, was the following:<\/p>\n

\u201cFaena de dos orejas con petici\u00f3n de rabo de toro \u201cCurioso\u201d n\u00ba 94, de peso 539 kg, nacido en febrero de 2010 ganader\u00eda de Garcigrande feria de San Juan de Badajoz, d\u00eda 22 de junio de 2014: \u201cmano izquierda al natural cambi\u00e1ndose de mano por la espalda sin moverse. Luego liga pase cambiado por la espalda y da pase por la derecha. El toro sale suelto y el torero va hacia \u00e9l dando pase por alto con la derecha<\/em>\u201d.\u201d<\/p>\n

Why did the court also refuse the registration? In principle, the court found that a bullfight was not a strictly human creation, because it depends on the bull\u2019s behavior. Neither is it an intellectual creation, because the outcome rides on physical ability rather than on ingenuity. The court also held that a bullfight is not a creation, but a series of predetermined \u201cpasses\u201d, many of them regulated; neither is it an original creation, because a bullfighter\u2019s movements are determined by the Bullfighting Performances Regulations<\/a>, and he therefore has no creative freedom. Finally, the court noted that bullfighting forms part of Spain\u2019s cultural heritage, which prevents a single individual from monopolizing particular bullfights, precluding other people from doing so too and also from holding moral rights in such spectacles.<\/p>\n

Act two: failed attempt<\/strong><\/p>\n

Following the appeal filed against the above decision, the Badajoz Appeal Court in turn handed down its opinion on January 22, 2018 (here<\/a>). The Appellate Court does not appear to pass judgment on whether a bullfight can, or cannot ideally be covered by copyright. However, it held, in line with the appealed decision, that the registration of these types of works could curb bullfighters\u2019 performances in the future, in the fear that they might be breaching someone else\u2019s copyright. As a result, the court found that the registration requested could not be granted.<\/p>\n

Final act: first trumpet call<\/strong><\/p>\n

The Supreme Court ruling (see here<\/a>) accepted two of the grounds for the cassation appeal filed against the judgment, thereby agreeing to interpret article 10 of the IPL \u2013 presumably to verify whether bullfight is a work that can be protected under that provision.<\/p>\n

The interpretation that will be offered does not end there. The Supreme Court appears to anticipate that it will be unifying legal opinion as regards the originality <\/em>that may be demanded of an intellectual property work to verify whether it is \u201cprotectable\u201d, as case law is divided on the subject. Indeed case law which follows criteria, such as objective originality \u2013 the strict novelty requirement with respect to what already exists \u2013; subjective originality \u2013 the expression of the author\u2019s personality \u2013; or the level of creativity \u2013 certain minor works cannot gain the degree of protection afforded by copyright \u2013 varies considerably on the issue.<\/p>\n

The Supreme Court\u2019s decision on the appeal will in all probability be guided by the consistent view held by the CJEU when interpreting the degree of originality required (independent concept of European law), set forth, for example, in its Levola<\/em><\/a>, <\/em>Cofemel<\/em><\/a> or Brompton<\/em><\/a> judgments, which leans decidedly towards subjective originality.<\/p>\n

Will the bullfight reveal enough \u2018courage\u2019 to be classified as a work?<\/strong><\/p>\n

Cultural heritage (Law 18\/2013<\/a>), art, hallowed tradition or animal torture; no one is indifferent to bullfighting, which has both the most ardent supporters and the fiercest critics. This divisive subject is soon to enter a new arena because the question that follows the admission of the cassation appeal is the following: does bullfighting deserve to be classified as a work<\/em>?<\/p>\n

In this case it is up to the Supreme Court to wave the relevant handkerchief, not in view of the public\u2019s opinion, but following a strict interpretation of the Intellectual Property Law and European guidelines on the subject, based on which the CJEU has refused to grant protection to items as offbeat as the taste of cheese<\/a> or a football match (FAPL<\/em><\/a>). In the absence of precedents, the Spanish courts have differing views on the subject. Whereas Hugo de Patrocinio Polo, in his work Tauromaquia y Propiedad Intelectual,<\/em> (Bullfighting and Copyright) defends the view that bullfighting can be copyrighted, other authors such as Bercovitz Rodr\u00edguez-Cano (Comentarios a la Ley de Propiedad Intelectual<\/em>) (Comments on the Intellectual Property Law) hold that since \u201cstrength, ability [and] courage prevail over creation\u201d, this implies the primacy of physical ability, which prevents a bullfight constituting a work.<\/p>\n

To draw an analogy with sport such as football, this last opinion would be much more likely to succeed based on the CJEU judgment in the FAPL<\/em> case, in which the court ruled, based on similar arguments, that a football match could not be protected by copyright.<\/p>\n

Ricardo L\u00f3pez Alzaga<\/strong><\/em><\/p>\n

Intellectual Property<\/a>\u00a0Department<\/strong><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

For many, bullfighting is an art, but this does not necessarily mean that a bullfight is a work in which the bullfighter holds a copyright: the Supreme Court is to decide whether a bullfight can be an original work and is therefore protectable by copyright. The Supreme Court has ruled on the copyright protection of […]<\/p>\n","protected":false},"author":4,"featured_media":10934,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[95],"tags":[656],"coauthors":[687],"class_list":["post-10942","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-intellectual-property","tag-intellectual-property"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/blogip.garrigues.com\/en\/wp-json\/wp\/v2\/posts\/10942","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogip.garrigues.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogip.garrigues.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogip.garrigues.com\/en\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/blogip.garrigues.com\/en\/wp-json\/wp\/v2\/comments?post=10942"}],"version-history":[{"count":1,"href":"https:\/\/blogip.garrigues.com\/en\/wp-json\/wp\/v2\/posts\/10942\/revisions"}],"predecessor-version":[{"id":10943,"href":"https:\/\/blogip.garrigues.com\/en\/wp-json\/wp\/v2\/posts\/10942\/revisions\/10943"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogip.garrigues.com\/en\/wp-json\/wp\/v2\/media\/10934"}],"wp:attachment":[{"href":"https:\/\/blogip.garrigues.com\/en\/wp-json\/wp\/v2\/media?parent=10942"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogip.garrigues.com\/en\/wp-json\/wp\/v2\/categories?post=10942"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogip.garrigues.com\/en\/wp-json\/wp\/v2\/tags?post=10942"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogip.garrigues.com\/en\/wp-json\/wp\/v2\/coauthors?post=10942"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}