As is the case with many other copyright laws worldwide, the Spanish Copyright Act protects human creations only when these are “original” – that is, when they meet the requirement of originality. One of the most controversial issues refers to the determination of this requirement. In a ruling of 5th April 2011 the Supreme Court considered this problem in relation to photographs.

Under Spanish law, photographs are covered by a dual protection regime. If a photograph is original, it is considered to be a work protected by copyright. Article 10.1(h) of the act states that "photographic works and those expressed through the analogue process of photography” are protected by copyright. Nevertheless, if the photograph is not original, it is protected not by copyright, but rather by a neighbouring right (Article 128 of the act). In the first case copyright spans the life of the author plus 70 years (beginning on 1st January of the year following  death), whereas in the second case a neighbouring right lasts for 25 years (beginning on 1st January of the year following the date of realisation of the photograph). Furthermore, in the first case the author of the photograph has economic and moral rights (including a resale right), while in the second case the author has only economic rights. Hence, it is vital to know whether a photograph is “original”. 

Under EU law, Recital 16 of the EU Copyright Term Directive (2006/116/EC) establishes that “a photographic work within the meaning of the Berne Convention is to be considered original if it is the author's own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account”.

The case decided by the Supreme Court on 5th April 2011 involved the rights in photographs that were meant to be included in the design, created by several people, of containers for and packaging of products marketed by the plaintiff. The plaintiff had no rights to the collective work in its entirety because such rights belonged to the coordinator of the collective work (the defendant).

As a requirement for protection of a work, the Copyright Act states that the work must be an “original creation”. The Supreme Court interpreted this expression to mean that a “creative originality” must exist. It added: “Creativity means the contribution of an intellectual effort – talent, intelligence, ingenuity, invention or personality. The uniqueness does not lie in the photographed object, or even in the mere technical correctness, but rather in the photograph itself, in its creative dimension.”

Based on its earlier ruling of 24th June 2004, the Supreme Court observed that “recognition as a photographic work demands a minimum of creative substance”, although “any objective novelty is not enough; rather, a minimal relevance is necessary”. In the case at hand, originality was not sufficiently significant to grant protection to the author through copyright. Thus, the court concluded that the disputed photographs were not protected by copyright, but rather only by neighbouring right.

The criteria used by the Supreme Court in its ruling recalled those in earlier decisions. As a requirement of copyright protection, a creation must have “objective novelty” and sufficient “creative substance”. The Supreme Court considered that the disputed photographs did not meet these requirements, upholding a previous provincial court ruling.