The Supreme Court of Spain confirmed that bullfighting is not copyrightable

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.

Source: IPKat.

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Paintings and watches – a dispute from Denmark

The Court in Denmark has ruled in a case concerning a copyrightable work transformed into another work. The case at hand focus our attention on the following painting by artist Tel R:

This painting has been purchased for $90 000 by Dann Thorleifsson and Arne Solmunde Leivsgarð, founders of the watch manufacturer company Letho.

They launched a campaign where the winners can order watches, which dials are made of small painting parts.

According to the artist, this was a completely new way of using of his painting that transforms the original work. He claimed that copyright permission for such use was needed.

The Letho’s position was that in this case there was a destruction of the work which according to the Danish law does not constitute copyright infringement.

The court ruled that there was a copyright infringement because the painting was made available to the public in a changed form, which requires copyright permission.

Source: WIPR.

The Advocate General of the EU Court gave an opinion on a case regarding Kraftwerk’s music and free(fair) use of works

The Advocate General of the European court issued an opinion on Case C‑476/17 Pelham GmbH, Moses Pelham, Martin Haasm срещу Ralf Hütter, Florian Schneider-Esleben. This case concerns the following:

Mr Ralf Hütter and Mr Florian Schneider-Esleben, claimants at first instance and respondents in the appeal on a point of law in the main proceedings (‘the respondents’), are members of the music group Kraftwerk. In 1977, the group published a phonogram which features the song Metall auf Metall. The respondents are the producers of that phonogram, but also the performers of the work in question and Mr Hütter is also the author (composer).

Pelham GmbH, a company governed by German law, defendant at first instance and appellant on a point of law in the main proceedings, is the producer of a phonogram which features the song Nur mir, performed, inter alia, by the singer Sabrina Setlur. Mr Moses Pelham and Mr Martin Haas, also defendants at first instance and appellants on a point of law in the main proceedings, are the authors of that work.

The respondents claim that Pelham, Mr Pelham and Mr Haas (‘the appellants’) copied — electronically sampled — approximately two seconds of a rhythm sequence from the song Metall auf Metall and incorporated it, as a continuous loop, in the song Nur mir. They submit that the appellants thus infringed the related right they hold as producers of the phonogram in question. In the alternative, the respondents invoke the intellectual property rights they hold as performers and allege an infringement of Mr Hütter’s copyright in the musical work. In the further alternative, the respondents allege an infringement of competition law. However, the proceedings before the referring court concern only the rights of the respondents as producers of the phonogram.

The respondents requested the termination of the infringement, the award of damages, the provision of information and the surrender of the phonograms for the purposes of destruction. The court of first instance upheld the action and the appeal brought by the appellants in the main proceedings was unsuccessful. By judgment of 20 November 2008, the referring court, in response to an appeal on a point of law brought by the appellants, upheld the judgment of the appeal court and the case was referred back to the appeal court for further examination. The appeal court again dismissed the appeal brought by the appellants. By judgment of 13 December 2012, the referring court, in response to a second appeal on a point of law brought by the appellants, dismissed that appeal. That judgment was annulled by the Bundesverfassungsgericht (Federal Constitutional Court, Germany), (8) which referred the case back to the referring court.

In those circumstances, the Bundesgerichtshof (Federal Court of Justice, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is there an infringement of the phonogram producer’s exclusive right under Article 2(c) of Directive [2001/29] to reproduce its phonogram if very short audio snatches are taken from its phonogram and transferred to another phonogram?

(2) Is a phonogram which contains very short audio snatches transferred from another phonogram a copy of the other phonogram within the meaning of Article 9(1)(b) of Directive [2006/115]?

(3)  Can the Member States enact a provision which — in the manner of Paragraph 24(1) of the [UrhG] — inherently limits the scope of protection of the phonogram producer’s exclusive right to reproduce (Article 2(c) of Directive 2001/29) and to distribute (Article 9(1)(b) of Directive 2006/115) its phonogram in such a way that an independent work created in free use of its phonogram may be exploited without the phonogram producer’s consent?

(4)  Can it be said that a work or other subject matter is being used for quotation purposes within the meaning of Article 5(3)(d) of Directive [2001/29] if it is not evident that another person’s work or another person’s subject matter is being used?

(5) Do the provisions of EU law on the reproduction right and the distribution right of the phonogram producer (Article 2(c) of Directive 2001/29 and Article 9(1)(b) of Directive 2006/115) and the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29 and Article 10(2), first sentence, of Directive 2006/115) allow any latitude in terms of implementation in national law?

(6) In what way are the fundamental rights set out in the Charter of Fundamental Rights of the European Union (‘the Charter’) to be taken into account when ascertaining the scope of protection of the exclusive right of the phonogram producer to reproduce (Article 2(c) of Directive 2001/29) and to distribute (Article 9(1)(b) of Directive 2006/115) its phonogram and the scope of the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29 and Article 10(2), first sentence, of Directive 2006/115)?’

17. The request for a preliminary ruling was received at the Court on 4 August 2017. Written observations were submitted by the parties in the main proceedings, the German, French and United Kingdom Governments and the European Commission. All the parties concerned were represented at the hearing on 3 July 2018.

The Advocate’s decision:

(1) Article 2(c) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that taking an extract of a phonogram for the purpose of using it in another phonogram (sampling) infringes the exclusive right of the producer of the first phonogram to authorise or prohibit the reproduction of his phonogram within the meaning of that provision where it is taken without the latter’s permission.

(2) Article 9(1)(b) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that a phonogram which contains extracts transferred from another phonogram (samples) is not a copy of the other phonogram within the meaning of that provision.

(3) Article 2(c) of Directive 2001/29 must be interpreted as precluding the application of a provision of the national law of a Member State, such as Paragraph 24(1) of the Gesetz über Urheberrecht und verwandte Schutzrechte — Urheberrechtsgesetz (German Law on Copyright and Related Rights) of 9 September 1965, according to which an independent work may be created in the free use of another work without the consent of the author of the work used, to phonograms, in so far as it exceeds the scope of the exceptions and limitations to exclusive rights provided for in Article 5(2) and (3) of that directive.

(4) The quotation exception provided for in Article 5(3)(d) of Directive 2001/29 does not apply where an extract of a phonogram has been incorporated into another phonogram without any intention of interacting with the first phonogram and in such a way that it forms an indistinguishable part of the second phonogram.

(5) Member States are required to ensure the protection, in their domestic law, of the exclusive rights set out in Articles 2 to 4 of Directive 2001/29, in so far as those rights can be limited only in the application of the exceptions and limitations listed exhaustively in Article 5 of that directive. Member States are nevertheless free as to the choice of form and methods they consider appropriate to implement in order to comply with that obligation.

(6) The exclusive right of phonogram producers under Article 2(c) of Directive 2001/29 to authorise or prohibit reproduction, in part, of their phonogram in the event of its use for sampling purposes is not contrary to the freedom of the arts as enshrined in Article 13 of the Charter of Fundamental Rights of the European Union.