IP rights in art in Spain

Intellectual property rights

Does copyright vest automatically in the creator, or must the creator register copyright to benefit from protection?

Copyright vests in the author by virtue of its creation. Registration is not required.

Drafts or sketches of sculptures and paintings, drawings, engravings and lithographs, picture stories, cartoons or comics and other works of three-dimensional art are also protected (in any form, not just the final version of the work).

What is the duration of copyright protection?

Moral rights are recognised without any time limitation.

Regarding the author’s exploitation rights, as a general rule protection shall run for the author’s life plus 70 years from his or her actual or declared death. However, there are exceptions, including the following:

• in the case of works created by authors who died before 7 December 1987, copyright shall be protected for 80 years from his or her death, instead of 70 years;
• in the case of anonymous or pseudonymous works, the term of 70 years commences from the date on which the work is lawfully made available to the public; however, if the authorship becomes known, this period expires, and the term shall be 70 years from his or her death;
• in the case of works of joint authorship, copyright protection shall run for the lifetime of the co-authors and for 70 years from the death of the last surviving co-author;
• in the case of collective works, copyright shall be protected for 70 years from the date on which the work was lawfully made available to the public; and
• in the case of works made available to the public in parts, volumes, instalments or separate issues that are not independent, copyright protection shall run for 70 years after each separate component is lawfully made available to the public.

The terms of protection are calculated from the first day of the year following that of the author’s death or that of the lawful communication of the work, as appropriate.

Exploitation rights vested in performers will expire 50 years after 1 January of the year following that of the performance or, if applicable, after the lawful publication of the recording of the performance.

Producers of phonograms and audiovisual recordings also enjoy copyright protection for 50 years after the completion of the recording or, where applicable, after the lawful publication of the recording.

The same 50-year copyright protection is applicable to broadcasting organisations (from the first broadcast or transmission) and database manufacturers (from the date on which the process of making the database is deemed completed or, if applicable, from the date on which the database was first made available to the public).

Copyright protection of ordinary photographs and publishers of unprotected works lasts for 25 years from the 1 January of the year following the creation of the photograph or the lawful communication of the work.

Can an artwork protected by copyright be exhibited in public without the copyright owner’s consent?

The owner of an original three-dimensional artwork or photograph is entitled to exhibit the work in public (even if it has not been made available to the public before) without the consent of the copyright owner, except where the author has expressly provided to the contrary in the sale agreement.

In any event, the author may object to the public exhibition if the work is displayed in a manner that is detrimental to his or her honour or professional reputation.

Can artworks protected by copyright be reproduced in printed and digital museum catalogues or in advertisements for exhibitions without the copyright owner’s consent?

Where the museum is a non-profit institution or where the reproductions in printed and digital museum catalogues or in advertisements for exhibitions are made without the intention of generating a profit, artworks protected by copyright can be reproduced without the copyright owner’s consent.

Are public artworks protected by copyright?

Public artworks are protected by copyright in the same way as other artworks except that they may be freely reproduced, distributed and communicated by painting, drawing, photography and audiovisual processes.

Does the artist’s resale right apply?

The artist’s resale right will apply whenever there is a transfer for consideration after a first sale (if the purchase price exceeds €1,200) and whenever ‘art market professionals’ participate in the resale. In other words, private sales are excluded (because they are difficult to control) and resales are also excluded by the art galleries that had, in turn, directly purchased from the author, provided that no more than three years have elapsed and the resale price does not exceed €10,000.

The duration of the artist’s resale right is 70 years after the author’s death.

The person liable to pay is the seller (art market professionals involved in the resale are jointly responsible) and the beneficiary of the artist’s resale right is the author during his or her lifetime and, after his or her death, the person to whom the author has expressly entrusted it in his or her last will and testament. In the absence of such provision, the beneficiaries of the artist’s resale right will be his or her heirs.

The artist’s resale royalty depends on the purchase price. For €50,000, the royalty is 4 per cent; and for over €500,000, the royalty is 0.25 per cent. There are also three further ranges of 3 per cent, 1 per cent and 0.5 per cent. However, the artist’s resale right will never exceed €12,500.

Beneficiaries can collect the artist’s resale royalty directly or entrust a collective management company to collect it, for instance the Visual Management Entity of Plastic Artists.

What are the moral rights for visual artists? Can they be waived or assigned?

Moral rights for visual artists are:

• the right to decide whether a work is to be made available to the public and, if so, in what form;
• the right to determine whether the work should be released under the author’s name, under a pseudonym, a sign or anonymously;
• the right to claim authorship of the work;
• the right to demand respect for the integrity of the work and to object to any distortion, modification or alteration of it or any act in relation to it that may be detrimental to the artist’s legitimate interests or to his or her reputation;
• the right to alter the work subject to respect for the acquired rights of third parties and the protection requirements of goods of cultural interest;
• the right to withdraw the work from circulation owing to changes in his or her intellectual or ethical convictions, after paying damages to the holders of the exploitation rights;
• if the author later decides to resume exploitation of his or her work, he or she shall grant preference, when offering the relevant rights, to the previous holder thereof, and shall offer terms reasonably similar to the original terms; and
• the right of access to the sole or a rare copy of the work, when it is in another person’s possession, with the intention to exercise his or her right of communication or any other applicable right. In addition, this right prevents the author from demanding that the work be moved, and access to it must be facilitated in a manner that causes the least possible inconvenience to the holder thereof, who shall be indemnified, where appropriate, for any damages caused to him or her.

These rights are recognised without any time limitation and cannot be waived or assigned.