The Supreme Court has established that the work of a bullfighter, from when the bull enters the ring until it ends with his death, cannot be registered as a work that is the object of intellectual property, as it is not possible to identify precisely and objectively what the bullfight consists of. original artistic creation.
The Civil Chamber has issued a ruling in which it dismisses the appeal of the bullfighter Miguel Ángel Perera in which he requested the inscription in the register of intellectual property of a work entitled “Two-eared slaughter with a request for a tail to the bull” Curious “No. 94, weighing 539 kgs, born in February 2010 Garcigrande livestock Fair of San Juan de Badajoz, June 22, 2014”.
The Registry of Intellectual Property of Extremadura rejected the request of the bullfighter, who filed a lawsuit against this decision by arguing that bullfighting is an art and the task of a bullfighter an artistic manifestation, a work of art, so it believed that its registration was appropriate as it is an original artistic creation.
But the claim was dismissed by the Commercial Court number 1 of Badajoz and by the Extremadura Court who understood that the work of a bullfighter lacks the condition of artistic creation susceptible to protection as a work of intellectual property, a decision that has now ratified the Supreme.
According to the jurisprudence of the Court of Justice of the EU, the concept of work supposes the concurrence of two elements: an original object that constitutes an intellectual creation of its author and that the consideration of work is reserved to the elements that express said intellectual creation (artistic), which should be identified with sufficient precision and objectivity.
“It is not objective”
“In the fight of a bull this identification is not possible, since it is not possible to express objectively what the artistic creation of the bullfighter would consist of when performing a specific task, beyond the feeling that it transmits to those who witness it, due to the beauty of the forms generated in that dramatic context “, he emphasizes.
In fact, the Supreme Court mentions the artistic consideration that critics and fans recognize the work of a bullfighter as well as the feelings it generates in those who witness it, as reflected in the work of some famous poets (Gerardo Diego, Federico García Lorca, José Bergamín) and painters (Goya, Picasso, Fortuny, Sorolla).
But it insists that to be protected as a work of intellectual property it must meet the requirements of the work itself. The Chamber explains that the intellectual creation attributable to the bullfighter, to his personal creative talent, would be in the interpretation of the bull that has corresponded to him in luck, when performing the task, in which, in addition to the uniqueness of that bull, inspiration would greatly influence and the mood of the bullfighter.
This creation, according to the sentence, would have to be reflected in an original formal expression, which in this case could become the sequence of movements, of the passes made by the bullfighter, which to be original should respond to free and creative options with a aesthetic reflection that projects your personality. Furthermore, this expression should be identifiable with precision and objectivity.
The Chamber indicates that it is here where, in application of the doctrine of the CJEU, lies the main obstacle to recognize the bullfight the consideration of work object of intellectual property. In its ruling, the court refers to the comparison made in the recourse of a bull fight to a choreography, which is included in the list of works that are the object of intellectual property.
He points out that in a choreography there is “a precise and objective identification that, in addition to making it possible to reproduce it again, allows us to identify what the creation consists of”, but that “the same does not happen in the work of a bullfighter.