Background of the case

On 7 October 2016, the artist Fumiko Negishi brought an action before the Commercial Court seeking a declaration of authorship and, in the alternative, co-authorship of two hundred and twenty-one works created together with the artist Antonio De Felipe, her employer.

Madrid Commercial Court no. 3 handed down a judgment on 16 January 2019, in which it declared that the artist, Antonio De Felipe, was the sole author of the two hundred and twenty-one pictorial works, as they had been published under his signature and there was no clear evidence of any creative activity on the part of the plaintiff that would allow his status as co-author to be recognised. He also pointed out that, as the Japanese artist was a subordinate employee of the latter, despite the fact that her role in the execution of the works could be relevant, it had not been proven that there was any creative activity that would allow her to be attributed the status of author, nor that of co-author, as there was a hierarchical relationship between the parties.

Negishi appealed against this decision to the Provincial Court on 13 October 2020.

Decision of the Provincial Court

The ruling interprets to what extent the existence of labour dependence between the parties and the accommodation of Fumiko Negishi to the pop art style (to which the defendant was attached) of Antonio De Felipe, prevent or nullify the possibility of recognising Negishi’s co-authorship of the disputed works.

In this regard, the Provincial Court considers that the fact that during a certain period the relationship linking the parties was of an employment nature does not preclude it from considering that Negishi could carry out an artistic activity that would make him a co-author of these works.

As regards the second question, the fact that the plaintiff followed the instructions and the pop art style does not, according to the Provincial Court, imply the absence of any artistic contribution on the part of Negishi. For the court, in this case, there are several circumstances that determine her contribution to the works. Among others: her professional qualifications, the significant remuneration received and the daily dedication of the plaintiff to the studio. Therefore, it is excluded that she performed a mechanical task of a simple technical nature, since despite Antonio De Felipe’s instructions, it was she who spent hours in the studio painting and necessarily had to make decisions in order to achieve a specific result.

In this sense, the judgement sets out the two distinct phases into which the creation of a work of art can be divided: conception and execution. And it points out that for a work of art to exist, it is not enough to conceive an idea; it is also necessary to execute it. Considering that Negishi played an extremely relevant role in the execution of the works, while De Felipe played an extremely relevant role in the conception.

For the Provincial Court, in this case, the creation was “an artistic symbiosis resulting from the collaboration of two professional painters, one capable of imagining and the other capable of expressing them on canvas”. Expressing them, according to the ruling, by taking relevant decisions on the final result, a circumstance that excludes that the work of the plaintiff was merely mechanical or complementary.

Consequently, the judgment confirms that Negishi, far from being a mere executor of her employer’s instructions, is a co-author of 221 of his works.

Ruling 204/2021, of the Madrid Provincial Court, 21 May 2021