Eleonora Rosati published an interesting article for IPKat that discusses the opportunity for copyright protection over bullfighting.
The dispute concerns an attempt by the well-known Spanish matador Miguel Ángel Perera Díaz to register with the Spanish Copyright Office a bullfighting video with description as a copyright work. The Office refused to do that because bullfighting wasn’t able to be copyright subject matter.
The decision was appealed and the Court upheld it. According to the Court bullfighting as well as other sport events are not copyrightable because they require following some strict rules. This in turn leaves no room for creative freedom for the purposes of copyright. The position reflects the European Court practice too (FAPL).
The decision was appealed again this time before the Supreme Court in Spain.
The Supreme Court admitted that there was a room for some level of artistry when matadors performing on the arena. Relying on the EU Court’s decision in Cofemel, the Court considered that copyright arises when there is a work and it is original one.
When it comes to work the Court cited the Levola Hengelo case: for there to be a ‘work’ as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.
Originality on the other hand reflects the author personality as an expression of his free and creative choices.
According to the Supreme Court bullfighting can fulfil the originality requirement because matadors implement some creative decisions when they are performing. However, bullfighting cannot be a work. The reason for this is that it cannot be expressed in such a way in order to be identifiable with sufficient precision and objectivity.
This is the argument why bullfighting cannot be regard as a choreographic work too. Each bullfight is unique by its nature and cannot be reproduced one to one.
From that perspective the Supreme Court considered bullfighting as not copyrightable.