May 14, 2021

Bulls and intellectual property, an original ‘task’ despite the Supreme Court | Blog The bull, by the horns


“The Supreme Court has lacked courage. I am convinced that the work of a bullfighter meets all the requirements established by law so that it can be registered in the Intellectual Property registry. What the judges have said is that the bullfighting work lacks the originality required by the Court of Justice of the European Union; I think, on the one hand, that a job in the ring cannot be compared to a play or a musical score, and, on the other, what do European jurists know about bullfighting. Nothing”.

Hugo de Patrocinio is this blunt, the lawyer who, on behalf of the right-handed Miguel Ángel Perera, wanted a task of this bullfighter to be considered intellectual property, and that the Supreme Court has recently rejected after a long judicial process.

“The same thing that they have rejected the proposal could have accepted it,” he continues. “The only legal basis is that the European court ensures that there must be a perfectly identifiable work and that condition is not met in bullfighting,” he continues. “What the Supreme Court comes to say is that the bullfighter should previously present a paper in which he will tell what he is going to do in front of the bull: I will receive him with a blow on the right side, another on the left …, five statuaries at the beginning of the crutch task, etc, etc …, which does not make any sense ”.

De Patrocinio insists that “if it is accepted that a work as complex as the work of a bullfighter cannot be required the same as a musical score, it fits without any problem in the Intellectual Property Law; the bullfighter creates something new every afternoon, he is the creator, owner and performer of his work, like the jazz musician, who creates without a score ”.

“They are all artists,” says the lawyer. “Why do some have rights to their work and others not?”

The lawyer recalls that the criterion of the Supreme Court is not immovable, (“in general, the law is in tow of the evolution of society”), and wonders what will happen when within a few years works created with the new ones are presented. technologies.

“The bullfighter is the creator, owner and performer of his work, like the jazz musician”

– What did the bullfighter want by registering his work in the intellectual property registry?

– “Equal to the rest of the artistic creators”.

– Wasn’t there an economic interest in your proposal?

– “Do not. This has never been our intention, but I recognize that the acceptance of our proposal would have been a revolution in the world of the bull, and, perhaps, that has been the fear of the Supreme. In any case, the economic issue is very complex and very long-term; but all authors make money from intellectual property rights ”.

For his part, Luis Hurtado, retired professor of Law at the University of Seville and author of the book ‘Bullfighters and Law’, is clear that “what is behind all this is more money, no more and no less; the right to receive a bonus each time a fragment of a bullfighting festival is reproduced ”.

Hurtado considers that the Supreme Court’s ruling “is very correct and has drank from my own sources.” “Bullfighting is an art, without a doubt,” he insists, “but not in the sense of the Intellectual Protection Law, because the bullfighter does not perform any work and his work is an improvisation in front of the bull; it does not contribute anything that is recognizable and reproducible in itself ”.

The National Orchestra of Spain, in a performance in September 2017, at the National Auditorium.
The National Orchestra of Spain, in a performance in September 2017, at the National Auditorium.

In similar terms, the also jurist Javier López-Galiacho, who points out that “the Supreme Court is right when it shows its refusal that the work of a bullfighter can be considered a work object of intellectual property and access to its registry, with the recognition of the creators and the economic retribution that corresponds to them ”.

Hugo de Patrocinio understands, however, that the fact that the Supreme Court accepted the appeal “is a great success and supposes, in principle, a well-founded hope that it will fail in your favor. It has not been like that, and I believe that an opportunity for a more in-depth analysis on a beautiful, original theme has been lost, and that, in my opinion, was well constructed; at least, the court has recognized that bullfighting is an artistic work, and that is the positive part of this process ”.

François Zumbiehl, renowned French anthropologist, is of the same opinion, who points out that “a task due to its unmistakable beauty is a work of art –of course– but it is also an unrepeatable moment., somehow subjective, as induced by the Supreme ”.

Regardless of the merits of the sentence, the process initiated and promoted by the lawyer Hugo de Patrocinio on behalf of Miguel Ángel Perera is profuse and not without curiosities.

The first is that the lawyer himself has been an alternative bullfighter. A native of the Badajoz town of Los Santos de Maimona, he entered the matador ranks in 1999, and hung up his suit of lights in 2014. He devoted himself fully to law, a tradition in his family, and after obtaining his degree he published a book entitled ‘Bullfighting and Intellectual Property’, in which he defended the property rights of bullfighters over their work.

A friend of Perera, both are committed to this path, and decide to record a task on June 22, 2014 in the Plaza de Badajoz. The video and a descriptive booklet are presented at the Extremadura Intellectual Property Registry.

“What is behind all this is more money, neither more nor less” (Luis Hurtado, professor of Law)

What happened next is told by the lawyer and extorero:

“The process got off to a bad start in the early stages. The registry denies registration and alleges that bullfighting belongs to the common cultural heritage and, therefore, cannot be registered, when it was evident that this was not the object of our request. Later, the Commercial Court of Badajoz showed that it has no idea of ​​bulls or intellectual property, and the judge confessed it to me, who took the easy way: to apply a sentence that referred to football matches in the scope of the European Union, as if there were some relation between the bulls and the game of the ball ”.

De Patrocinio continues that, already in court, the lawyer for the Junta de Extremadura, who defended the decision of the registry, provided a document that reflected that a meeting had been held between all the registrars of intellectual property in Spain in which they had voted by show of hands whether or not to register the works of the bullfighters; only one, that of Murcia, voted in favor.

“In other words,” the lawyer adds, “if the vote had been favorable, our work would have been registered without any legal basis.”

And there was even more: “The attorney for the Board insisted in the Commercial Court that we wanted to register the passes -the veronica, the right hand, the windlass, etc.- (nothing is further from our intention), and that that was not admissible because no other bullfighter could execute them again, an approach that was assumed by the Court and the Hearing ”.

Always according to the testimony of Hugo de Patrocinio, the Badajoz Court assured that the list of works that can be registered was closed by law, and the Supreme Court has clarified the opposite. Likewise, the Commercial Court pointed out that the work of a bullfighter is not entirely his because an animal is involved, “and I presented several works of art exhibited at the ARCO fair in which animals appear and that, with all certainty, there will not be any had problems registering “

“In a word,” he concludes, “the judgments of the Court and the Hearing have shown that the judges have preferred to go easy, without much interest in a matter that deserved a more in-depth analysis, even if they had not agreed with us.”

De Sponsorship clarifies the difference between the right to image, “that all people have by virtue of being so”, and that of intellectual property, which only creators have; and considers, on the other hand, that this claim, now rejected, should have been raised “many years ago, but also the world of bullfighting has always turned its back on social evolution.”

– The Supreme Court has said no, now what?

– “We are evaluating whether we go to the Constitutional Court …”.

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