Last sword to Bullfighting’s status as a protected work: Supreme Court judgment

The difficulties in determining what expression should be classified as a work under the Spanish Intellectual Property Act are nothing now. The established position of the Spanish and EU courts has pivoted from a definition historically more predisposed towards subjective originality, which protects creations that pertain to their author, to the current definition, more favorable towards objective originality, which requires the creation to be objectively different.

There have been many and varied judgments in both Spain and at EU level regarding what can be protected by intellectual property (for example, whether it covers an extract of eleven words, a DIY catalog or, very recently, the flavor of a cheese). The courts have not adopted a uniform position, as demonstrated by the sometimes contradictory rulings in this regard.

Bullfighting is now under the microscope. Beyond support for or criticism of bullfighting, it is undeniable that the matador’s mark and the aesthetics that go with each performance are characteristic of this activity. In fact, many readers of this blog would be happy to classify bullfighting as art and some performances as true “works of art.” This does not mean, however, that, from a legal viewpoint, a specific bullfight can be protected by intellectual property.

The Supreme Court ruled on this particular issue in its recent judgment of February 16, 2021.

Background

The background to the case, which caused such a stir at the time, dates back to 2014, when a renowned matador applied for the registration of a work titled “fight in which both ears were awarded and the audience petitioned for the tail from the bull Curioso, no. 94, weighing 539 kg, born in February 2010, Garcigrande livestock, at the Feria de San Juan de Badajoz festival on June 22, 2014”, essentially his perfect kill, which the matador claimed consisted of a “left-handed natural changing hand behind the back without moving; the bull makes a pass and the matador goes towards it performing a high pass with the right.”

After his application was denied, the matador filed an ordinary lawsuit before Commercial Court no. 1 of Badajoz, arguing that the fight was an original artistic creation within the meaning of the copyright regulations and that, therefore, it should be registered.

The first instance judgment dismissed his claims. Offering varying arguments, it essentially focused on deciding whether the fight in question should be classified as a work. Among other points, the judgment argued that the regulation of bullfighting (in issues as precise as the characteristics of the bull, its breed, weight, or the dimensions of the ring, instruments, phases, duration or participants) means this activity lacks sufficient creative freedom to be protected by copyright regulations.

Although briefly, it also referred to the analysis of the matador’s performance, stating that there is no performance without a pre-existing work, and there is no original work if the matador performs some predetermined passes and maneuvers. Therefore, the impression of a “style, rhythm, cadence, personality” on something that already exists does not add “uniqueness” or “creative height” making it possible to obtain the protection granted by the regulations; rather, it constitutes forms of performance in which “courage and intrepidness, physical ability and agility” prevails over “human ingenuity.”

The second instance judgment plunged another dagger into the matador’s case. The Provincial Court of Appeals recognizes the aesthetic nuance characterizing the activity of bullfighting. However, it reminds that it is a physical activity and that, therefore, the performance possibilities are practically infinite, and it is very difficult to determine whether two fights by two different matadors are the same or only similar. It states that “in moments as dramatic as bullfighting passes one cannot be thinking whether what one is going to do is protected by another person’s intellectual property or not. Ultimately, it is not possible for each and every matador to register any fights they consider appropriate because that would sound the death knell for bullfighting.”

The Supreme Court’s position

After the dismissal at second instance, the matador decided to lock horns again and filed an appeal in cassation based on two main grounds, which the Supreme Court agreed to hear, namely:

• Section 10 of the Intellectual Property Act and whether it protects a specific bullfight determined within the open list of protected works it envisages.
• The unification of established legal principles on the standards of originality required of a work of intellectual property for it to be protected under the Intellectual Property Act, as the courts have established differing and sometimes contradictory positions with regard to some works of art.

The Supreme Court analyzes both grounds together. Therefore, it raises the position adopted by the Court of Justice of the European Union (“CJEU”) in two recent cases: Cofemel (C-683/17) and Levola (C-310/15), already discussed here and here in this blog, which specify the requirements to determine that a work is susceptible to intellectual property protection.

In particular, two elements must be present: (i) there must be an original object that constitutes an original creation of its author; and (ii) the object must be identifiable with sufficient precision and objectivity.

From a conceptual viewpoint, these requirements distinguish the concept of originality from the concept of work, previously confused by the CJEU: not every work is original per se; and originality is not a sufficient requirement for there to be a protected work.

It is, therefore, a fact that the second of these requirements is missing — that is, that the object can be identified with sufficient precision and objectivity — that means, in the Supreme Court’s opinion, that the fight cannot be protected as a work of intellectual property.

The Supreme Court therefore recognizes that a matador’s fight can be considered art (expressed, among other matters, in the “body language, aesthetics and creation of figures through which the matador projects his feelings to the audience”), although it recalls that, applying these criteria, the basis for requesting recognition as a protected work must be specified, as that will ultimately give rise to the strong protection granted by copyrights, divided into the moral and financial powers recognized by the Intellectual Protection Act.

In the Supreme Court’s opinion, that objective and precise identification of the matador’s artistic creation, which means the fight cannot be recognized as a protected work by the intellectual property regulations, is not possible in a bullfight.

Finally, the judgment also rules out the matador’s fight being protected as a choreographic work. In this regard, the Supreme Court argues that, unlike in choreography, where the movements and forms comprising it can be identified precisely and objectively, that objective identification is very difficult in a bullfight, “beyond the specific passes, thrusts and maneuvers with regard to which exclusive rights cannot be attained.”

Author: Marta Zaballos