RIDA 235 | 01-2013

News from abroad

NEWS FROM SPAIN - II - 2008/2011 - CASE LAW DEVELOPMENTS

Juan Jose MARIN LOPEZ

Code : 235-CE
Keywords :
Damages, Assignment, transfer, Moral rights, Paternity (right), Respect for the integrity (right to), integrity right, Communication to the public, Related rights, neighbouring rights, Database, Private copying, Fair compensation (remuneration) for private copying, Collective management, audiovisual, commissioned, photograph, Notion, concept, Spain, Proof, For private copying

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concern the application and interpretation of the Spanish Intellectual Property Law (IPL), approved by Royal Legislative Decree 1/1996 of 12 April 1996.

Distinction between a Photographic Work and an Ordinary Photograph

One of the features of the IPL is the distinction made between a photographic work protected by copyright and an ordinary photograph protected by a related right. The difference between the two is that a photographic work is original whereas an ordinary photograph is not. The case decided on 5 April 20111 was the first time that the Supreme Court has examined the question of originality in relation to photographs. It involved photographs commissioned for inclusion in the production of a design and the main problem addressed concerned the possibility of transforming the photographs. After confirming that the distinction between a photographic work and an ordinary photograph was consistent with European Union law, the Court stated that creativity implies the contribution of an intellectual effort – talent, intelligence, ingenuity, inventiveness or personality – that turns the photograph into an artistic or intellectual creation, and such uniqueness does not lie in the photographed object, or even in the mere technical precision, but rather in the photograph itself, in its creative dimension. The assessment of sufficient creativity will depend on the circumstances of each case because various factors and aspects may have an

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