Background of the case

The background of the case dates back to 2014, when a reputed bullfighter applied for the registration in the intellectual property register of a work entitled “Performance of two ears with request of tail to the bull “Curioso” nº 94, weighing 539 kgs, born in February 2010 at the Garcigrande livestock farm Feria de San Juan de Badajoz, 22 June 2014″.

This application was rejected and on 10 April 2017, and subsequently a lawsuit was filed before the Commercial Court No. 1 of Badajoz against the Territorial Registrar of the Intellectual Property of Extremadura, claiming that the bullfight was an original artistic creation and that, therefore, its registration was appropriate.

The first instance judgement rejected their claims, arguing that its own regulation of bullfighting entails that this activity lacks sufficient creative freedom to be covered by copyright law. And in a very similar line, the Provincial Court of Extremadura, understood that the performance of a bullfighter lacks the condition of artistic creation susceptible of protection as a work of intellectual property.

Finally, an appeal was lodged before the Supreme Court on two main grounds:

1) Interpretation of article 10 of the LPI and whether it covers a specific and determined bullfighting performance within the open list of protected works set down.

2) On the doctrine harmonistion with regard to the standards of originality required of an intellectual property work in order for it to be eligible for protection under the LPI.

Supreme Court decision

The First Chamber of the Supreme Court has ruled that a bullfighter’s performance cannot be registered as a work subject to Intellectual Property, on the grounds that it is not possible to identify with precision and objectivity what the original artistic creation consists of that recognises this right.

It is recalled that, according to the case law of the European Union Court of Justice, the concept of work implies the concurrence of two cumulative elements: firstly, there must be an original object that constitutes an intellectual creation of its author, and secondly, the consideration of work is reserved to the elements that express this intellectual creation.

In other words: not every work is original per se, nor is originality a sufficient requirement for a work to be protected.

In the judgement, the court also dismisses the comparison made between the fighting of a bull and a choreographic work. It is stated that in the choreography it is possible to identify with precision and objectivity the movements and forms of the dance that make it up. However, in bullfighting, beyond the specific passes, lances and suertes, it is very difficult to identify objectively what the original artistic creation consists of.

Therefore, without detriment to the artistic consideration that can be recognised by critics and amateurs, as reflected in the work of some famous poets and painters, from a legal perspective, the actual fighting of a bull cannot be protected by intellectual property.

In conclusion, the Supreme Court rejected the appeal, and denied the application for the registration of the work in the Intellectual Property register, considering that in the fighting of a bull it is not possible to objectively and precisely identify the artistic creation of the bullfighter.

Judgement 82/2021 of the Civil Chamber of the Supreme Court of 16 February 2021