In a recent ruling of the Supreme Court Plenary, it was confirmed that football cannot be considered an original work for the purposes of the Intellectual Property Law.
Many people, when talking about football, may think of Maradona’s goal of the century in Mexico ’86 or Zidane’s volley in Glasgow, and refer to them as works of art. Well, the Supreme Court has declared that they are not, at least for the purposes of the Intellectual Property Law (LPI).
As the TS has stated in its judgement 546/2022 of 2nd June, although it is true that during a match there may be some plays with a certain aesthetic value, this is far from being a literary, artistic or scientific work. It is therefore a sporting spectacle, not an artistic one, and although we can imagine many situations that evoke a certain beauty, the reality of the sport is that there is a large majority of plays in which no artistic value can be appreciated.
In the case at stake, three bars in Valencia had been broadcasting the Spanish Professional Football League matches without a licence. In the first instance, Valencia Criminal Court No. 7 sentenced the owner of these bars for a minor offence relating to the market and consumers, imposing a fine of 720 euros. However, La Liga appealed the judgement on the grounds that it could be an offence against Intellectual Property under Article 270 of the Penal Code. The ‘problem’ with this article is that the offence requires the guilty party to: “with the intention of obtaining a direct or indirect economic benefit and to the detriment of a third party, reproduces, plagiarises, distributes, publicly communicates or in any other way economically exploits, in whole or in part, a literary, artistic or scientific work or performance, or its transformation, in any form, in any manner whatsoever, artistic performance fixed in any kind of medium or communicated by any means, without the authorisation of the holders of the corresponding intellectual property rights or their assignees“, that is to say, the unauthorised use must be carried out in respect of a work within the meaning of the Intellectual Property Law.
However, the broadcasts of a football match do find protection under the LPI, but not because they are literary, artistic or scientific works, but because the audiovisual recordings containing the match and the transmission of the broadcasts of the broadcasting organizations are protected. These are therefore rights included in Book II of the LPI whose unauthorised use will lead to a sanction, as in the present case in the form of an offence against the market and consumers, but which do not fall within the scope of Art.270 of the CP since the infringement ought to be produced in relation to an original work, so it cannot be protected through these criminal proceedings.
This ruling confirms something that for intellectual property experts might seem rather obvious, but which undoubtedly needed to be delimited by the judiciary. As it is usual with copyright, the line between what can be considered art for society and what is art for legal purposes is not always in the same place. This ruling is in line with what has already been decided by the judiciary with respect to other sporting events such as bullfighting, whose copyright protection was also denied.