Copyright in the bullring?
A bullfight is a contest between a bullfighter and a bull. Regardless of one’s views on the practice itself, it is probably fair to describe it as a combination of sport and performance.
Last month, the Spanish Supreme Court was asked to determine whether certain aspects of bullfighting were protectable by copyright.
The Spanish Copyright Registry had refused to register an audiovisual recording of a bullfight filed by a famous Spanish bullfighter finding that bullfighting, like football matches and other sporting events, could not be regarded as copyright works within the meaning of the Copyright Directive because the rules of the sport left no room for creative freedom. In the case of bullfighting, there are various rules including those relating to the characteristics of the bull (e.g. its weight), the size of the bullring, the objects that can be used and the various stages of the bullfight.
However, the Spanish Copyright Registry’s refusal was appealed by the bullfighter and so that matter ended up before the Spanish Supreme Court.
The court considered the 2019 case of Cofelmel in which the Court of Justice of the EU had previously consolidated its settled case law dealing with what copyright does, and does not, protect. In that case, the CJEU had said that for copyright protection to arise, all that is required is: (a) a work; (b) which is original. Nothing more.
Therefore, in order to decide whether a bullfight was protectable as a copyright work, the Spanish Supreme Court had to consider the meaning of ‘a work’ and the meaning of ‘original’. The CJEU defined ‘work’ as meaning any subject matter expressed in a manner which makes it identifying able with ‘sufficient precision and objectivity’ (but not necessarily in permanent form). And the CJEU defined ‘original’ as meaning subject matter which reflects the personality of the author, as an expression of his/her free and creative choices (meaning that if the subject matter was constrained or dictated by technical considerations or rules, leaving no room for creative freedom, the subject matter could not be considered original).
In the final analysis the Spanish Supreme Court decided that bullfighting was not protectable as a copyright work because:
Whilst the ‘sporty bits’ (i.e. the bits that could be identified with precision and objectivity) may constitute a work, the could not be original (because those aspects were constrained or dictated by technical considerations or rules); and
Whilst the ‘performancy bits’ (i.e. the bits that displayed the personal touch of the bullfighter) may be original, but could not constitute a work (because they could not be identified with precision and objectivity). Unlike a choreographic work, which can be protected by copyright because it can be identified with sufficient objectivity and precision (and, accordingly, can be replicated), every bullfight is unique and therefore cannot be identified with sufficient objectivity and precision (and, accordingly, cannot be replicated).
In short, under EU law at least, the current position is that you cannot have copyright protection in something that is a work but not original, and neither can you have copyright protection is something that is original but is not a work.
It will be interesting to see how EU copyright legislation and case law continues to develop. Moreover, it will be interesting to see how English copyright legislation and case law develops in a post-Brexit world and in particular whether the law becomes more expansive and encompassing (as appears to be trend in Europe, notwithstanding the Spanish Supreme Court’s refusal to find copyright in a bullfight) or whether the law becomes more restrictive (as is the more traditional position under English law, certainly over the last couple of decades, the legislation and case law confined copyright protection to works in specific categories).
Briffa are experts in all aspects of intellectual property law and practice. If you would like to arrange a free consultation with one of our specialist copyright lawyers, please do not hesitate to get in touch on 020 7288 6003 or [email protected].
Written by Éamon Chawke, Partner