This post is also available in: Español
The Negishi v De Felipe case is one of those that immediately arouse the reader’s interest. The appeal judgment (Judgment 204/2021 of the Provincial Court of Appeals of Madrid, of May 21, 2021) was published recently, rejecting the first-instance ruling (judgment of Commercial Court no. 3 of Madrid) that had declared the defendant, artist Antonio de Felipe, the sole author of 221 paintings, as they were made public under the defendant’s signature and without clear evidence of creative activity by the claimant, Fumiko Negishi, to be recognized as co-author.
We review the proven facts determined in the judgment to better understand the dispute.
- The claimant and the respondent are both plastic artists with vast experience, merit and recognition in the art world..
- They worked closely for several years; although they started working together earlier, they maintained an employment relationship at least between 2006 and 2016 under which Negishi created works tasked by Felipe, following his instructions and using the materials and workspace he provided. Nonetheless, all the creations bore the claimant’s artistic mark, which the PC does not dispute.
- The relationship between the parties ended with Negishi’s dismissal, declared unfair by the labor courts, so she turned to the civil courts to claim her moral right of authorship on these works.
The Provincial Court’s reasoning
Based on these facts, among other points, the judgment interprets to what extent (i) the employment relationship between the parties, and (ii) Negishi adopting pop art style (which the defendant favored) and following De Felipe’s instructions prevent or eliminate the possibility of recognizing Negishi’s co-authorship of the disputed works.
Regarding the first point, the PC ruled that the fact that, from a legal point of view, the parties were linked by an employment relationship for a period of time does not mean Negishi did not perform an artistic activity giving her the status of co-author of these works.
In the words of the PC, an employment relationship does not “erase any glimmer of artistic contribution by the employee to the employer because the latter is also an artist.” The actual contribution of each of them to the artistic creation must be assessed.
Incidentally, this specific point is recognized in the applicable intellectual property law: the presumption of assignment of intellectual property rights from employee to employer under section 51 of the Spanish Intellectual Property Act only affects the financial aspects of copyright. Moral rights are not covered by this presumption (in Spain, moral rights cannot be waived or transferred).
In terms of the second point, according to the PC, the fact that the claimant followed her employer’s instructions and pop art style does not imply the absence of Negishi’s contribution. The PC highlights that the specific result of the creations would not have been exactly the same without the claimant’s participation, as she captured De Felipe’s ideas or projects in a specific final result.
There are several circumstances present in this case that, according to the PC, determine the essential nature of Negishi’s contribution. These include her professional qualification, the significant remuneration received and her dedication to working daily at the studio. The PC determined that the defendant’s catalog of works would not have been as prolific without Negishi’s artistic contribution, particularly given De Felipe’s lifestyle and the numerous trips he made.
The PC discusses the two phases in the creation of a work of art: conception and execution. And it reminds us that conceiving an idea to create a work of art is not enough; the idea must be captured in a medium or executed, which is exactly what the claimant would do.
The PC calls attention to caselaw by the Court of Justice of the European Union (“CJEU”) in two relatively recent cases: Cofemel (C-683/17) and Levola (C-310/15), already discussed here and here in this blog, which specify the requirements to determine that a work is susceptible to intellectual property protection.
In particular, two elements must be present: (i) there must be an original object that constitutes an original creation by its author; and (ii) the object must be identifiable with sufficient precision and objectivity.
Based on this, the PC highlights Negishi’s essential role in executing the defendant’s ideas. The artistic creation, in this case, is “an artistic symbiosis born out of the collaboration of two professional painters, one capable of imagining and the other of expressing ideas on a canvas.” Expressing them entails making important decisions on the final result, which rules out any claim that her work was merely mechanical or supplementary.
The PC believes that this suggests that both parties contributed to the paintings and, therefore, should be considered co-authors.
The court appears to assign at least the same weight to the conception and execution phases in terms of originality of the creations to determine the allocation of moral rights in this specific case.
Copyright specialist Rafael Sánchez Aristi examines these two different phases of creating a work of art and opens an intriguing debate regarding which one carries more weight when determining the originality of a particular artistic creation. While not taking away from the specific method of execution of a work of art, which in many cases is sufficiently original, he believes that it should not be ruled out that such a work’s originality lies in its conception rather than its execution, which can be less significant in terms of originality.
Obviously, the issue is not clear, and the case is not closed. We will keep an eye in case the defendant files a cassation appeal to see how the Supreme Court finally determines the significance of each of these phases to allocate authorship rights.
Author: Marta Zaballos
 Rafael Sánchez Aristi, “Ideas as an object covered by intellectual property,” Pe.i Revista de propiedad intelectual, no. 4, 2000, p. 43.
This post is also available in: Español