Spanish Supreme Court applies Cofemel and rules that bullfighting cannot be protected by copyright

Miguel Ángel Perera Díaz in a faena

A bullfight (in Spanish: corrida; the final stages are called faena) is a contest that involves a bullfighter (a matador) and a bull, in which the former seeks to subdue, immobilize or kill the animal in accordance with a set of rules. The best-known type of bullfighting is the Spanish-style one, which has been traditionally regarded as both a sport and performance art.

In relation to the latter qualification of bullfighting, a question that has recently arisen is whether a bullfight might be regarded as a work protectable under copyright law.

The Spanish Supreme Court answered this question in the negative last month, when it delivered its judgment in a longstanding copyright saga, which had first begun after a well-known Spanish matador, Miguel Ángel Perera Díaz, was refused registration – by the Extremadura Copyright Registry – of a faena of his.

Background

The bullfight in question was one which had taken place in 2014 at Badajoz bullring, featuring Perera Díaz and a bull named Curioso. The application filed with the Copyright Registry consisted of an audiovisual recording of the faena and a description thereof.

Following the refusal of the Copyright Registry to register his ‘work’, Perera Díaz appealed to the Badajoz Commercial Court No 1. In dismissing the appeal, that court reasoned that a bullfight would not qualify for protection. It reached this conclusion by drawing an analogy with the treatment of football matches and, more generally, sporting events, as considered by the Court of Justice of the European Union (CJEU) in FAPL. In that case, the CJEU held (at [98]) that:

sporting events cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive. That applies in particular to football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright.

The court stated that a bullfight is subject to several rules of the game, including: 

• those concerning the characteristics of the bull, its weight, its antlers; 
• the size of the bullring; 
• the tools that can be used; 
• the various phases and duration thereof, as well as the subjects that intervene in each of these. 

In the context of a bullfight, a matador is not capable of exercising any free and creative choices, as it is instead required under copyright law.

Perera Díaz filed a further appeal, again without success. A final appeal to the Spanish Supreme Court followed, claiming inter alia breach of Article 10 of the Spanish Intellectual Property Law (this provision sets forth an open-ended catalogue of protectable works under Spanish copyright law) and a misapplication of the originality standard.

The Supreme Court decision

The Supreme Court considered it necessary to undertake a joint assessment of whether the object in question could be regarded as a work that is original.

The Supreme Court reviewed the FAPL judgment and considered that, whilst relevant, it would not serve to exhaust the analysis, since a bullfight is not just a sporting event. Besides the physical performance and the athletic ability of the matador, there is something more in a bullfight: the artistic dimension thereof.

The Court thus deemed it more helpful to look at another CJEU decision for guidance: Cofemel [Katpost here]. In that 2019 ruling, the CJEU consolidated its settled case law, starting as early as Infopaq [Kat-anniversary post here], and clarified – once and for all – that, under EU law, copyright protection arises when there is (1) a work, which is (2) original. Nothing further is required.

With regard to the notion of work, guidance is found in Levola Hengelo [Katpost here]. There, the CJEU defined this concept as follows (at [40]):

for there to be a ‘work’ as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.

Turning to originality, this notion requires (Cofemel, at [30]-[31]) that the subject matter at hand “reflects the personality of its author, as an expression of his free and creative choices”. In turn, this means that “when the realisation of a subject matter has been dictated by technical considerations, rules or other constraints, which have left no room for creative freedom, that subject matter cannot be regarded as possessing the originality required for it to constitute a work”.

The Spanish Supreme Court accepted that a bullfight may be original (it also provided references to poets and artists who described the feelings that these events evoke), but considered that it would not qualify as a work.

It is true that each bullfight consists of a set sequence of acts. However, there are also key elements that escape this structure, notably the technique and skills of each bullfighter. The ‘free and creative’ choices of a bullfighter would consist of understanding the bull in order to decide what moves should be performed next. However, for them to be regarded as a work, they should also be expressed in such a way that they are identifiable with sufficient precision and objectivity. According to the Supreme Court, this would not be possible in the case of a bullfight.

The Court also addressed the question whether a bullfight could be regarded as a choreographic work. The answer would be in the negative. A choreographic work satisfies the Levola Hengelo test, including because a choreography – it being identifiable with sufficient objectivity and precision – can be reproduced. Each bullfight, instead, is unique and cannot be replicated.

Comment

This is a very interesting judgment, not only because it adds to the catalogue of national applications of Cofemel (after UK, Italy, Denmark, etc), but also because it seeks to break down the requirements developed in over a decade of CJEU decisions on the key question of when copyright protection does arise.

The cheese at issue in Levola Hengelo

It seems that the broader teaching of this Spanish decision is the following. For copyright protection to arise, it is both necessary and sufficient that the subject matter at hand qualifies as an original work. You cannot have copyright protection in something that is original but is not a work and vice versa. In the case of a bullfight:

• The parts thereof that are sufficiently delineated in the sense that they are identifiable with precision and objectivity may be a work. However, they are not original, if anything because the set sequence in a bullfight is something that is dictated by technical rules, choices and constraints.
• The parts thereof that are sufficiently original and display the personal touch of the matador are not a work because they cannot be identified with sufficient precision and objectivity.

Considering the case of choreographic works, the Spanish court also suggested that the precision and objectivity that is needed to qualify as a work under Levola Hengelo is one that allows the ‘object’ to be reproduced. This, however, is a requirement that has never featured in CJEU case law and, in my view, should be rejected: the taste of the cheese at hand in, eg, Levola Hengelo is something that can well be reproduced (all Heks'nkaas boxes taste the same), yet it is not something that can be delineated with sufficient precision and objectivity, at least for the time being (see Levola Hengelo, at [43]). The test should thus be only one of precision and objectivity, not also replicability. There is and there should be room for improvisation in copyright law, including with regard to choreographic works, performance art, and similar 'objects'.

[Originally published on The IPKat on 6 March 2021]