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Originality in bullfighting

Last 10th April 2017, Mercantile Court Nº1 of Badajoz issued a judgement deciding whether bullfighting could be protected by copyright. The claimant tried to register his bullfighting in the Intellectual Property Registry of Badajoz, describing some sequences of movements, as follow: "Mano izquierda al natural cambiándose de mano por la espalda sin moverse. Luego liga pase cambiado por la espalda y da pase por la derecha. El toro sale suelto y el torero va hacia él dando pase por alto con la derecha" (1). The IP Registry refused the inscription arguing that it didn´t qualify as an original work protected under Intellectual Property Law. Court agrees with the reasoning.

The judgement analyses the concept of "originality" under the Spanish Law, as the main requirement to protect a work by Copyright. Originality can be studied from two points of view, objective and subjective. In respect of the second one, author´s personality is what matters but, nowadays New Technologies´ influence in the world of arts have rendered this character less relevant. On the other hand, from the objective perspective, the work could be protected if consist in "Something new that has been created that didn´t exist before", which seems much more reasonable to the extent of Copyright protection.  

This decision makes clear that original character cannot be derived neither from physical ability, nor from the difficulty of the task. The bullfighter also argued that his particular style renders this bullfighting an artistic work, but the judgement asserts that styles are not protectable by copyright, as it is widely known. 

In respect, also in dispute, it could be object of Image rights. However, this case does not qualify either since no previously existing work is being interpreted. 

With respect to the plaintiff´s argument as to the public performance, "the bullfighter is both an interpreter and a creator who prints his own personality in the combination and rhythm of his work," however for there to be interpretation there must be a pre-existing work, which is not the case.

Finally, the judge maintains that it will be impossible for the bullfighter to have moral rights over the bullfighting considering that he couldn´t exercise those rights since he cannot modify his work,   access the unique and rare copy of it, decide if it has to be disclosed and in what form, (...), or withdraw it from trade.

In conclusion, applying current law, bullfighting cannot be considered as original work.


(1) free translation: Left hand to the natural changing of hand by the back without moving. Then turn pass changed by the back and gives pass by the right. The bull comes loose and the bullfighter goes towards him giving a pass with the right


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