Background of the case

On January 24, 2017, a lawsuit was filed by Mr. Carlos López García and Mr. Manuel Ángel Egea Martínez against Mr. Fernando Rodríguez Trueba, requesting the plaintiffs to be declared the authors of the original work LA NIÑA DE TUS OJOS, the existence of intellectual property rights infringement (the unlawful transformation of the pre-existing work through the production of the film) and the defendant to be ordered to pay compensation for the damages caused.

La NIÑA DE TUS OJOS is a derivative work resulting from the transformation of LA NIÑA DE SUS OJOS, transformation for which the plaintiffs gave their consent by contract dated January 15, 1993. However, the plaintiffs allege that more recently, Don FERNANDO RODRÍGUEZ TRUEBA prepared a new script entitled LA REINA DE ESPAÑA (The Queen of Spain), which gave rise to the film of the same title directed by himself and produced by the co-defendant. The plaintiffs claim that, as a sequel to LA NIÑA DE TUS OJOS, said script would constitute a new transformation of LA NIÑA DE SUS OJOS, the consent of which was not provided.

The lawsuit was dismissed in its entirety at first instance, as the Court considered that, by contract, the plaintiffs had also assigned the right to carry out transformations of the original work. An appeal was subsequently filed by the plaintiffs.

Decision of the Regional Court

In this ruling, it is argued whether or not LA NIÑA DE TUS OJOS, is a derivative work resulting from the transformation of LA NIÑA DE SUS OJOS, being the plaintiffs the authors. If so, whether or not LA NIÑA DE TUS OJOS is recognizable in  LA REINA DE ESPAÑA, and what is the legal consequence of this.

As regards the first question, the Court considers that the film script LA NIÑA DE TUS OJOS is a derivative work resulting from the transformation of the script LA NIÑA DE SUS OJOS written by the plaintiffs, by reproducing the fundamental elements of the story it tells and being fully recognizable in it.

Regarding the recognizability of LA NIÑA DE SUS OJOS in LA REINA DE ESPAÑA, it is established that taking into account the previous material, the script of said audiovisual work only takes seven of the characters whose singular characteristics had been introduced as original elements in the script written by the defendant in LA NIÑA DE TUS OJOS. There are also other factors (the historical context, the story…) that make it possible to deduce that it may be somehow linked to LA NIÑA DE TUS OJOS but not from the original work LA NIÑA DE SUS OJOS. That is why LA REINA DE ESPAÑA will be considered as a derivative work resulting from the transformation of LA NIÑA DE TUS OJOS. The immediate legal consequence, pursuant to Article 21.2 of the Intellectual Property Act and doctrine, is that the defendants do not need the authorization of the plaintiffs to write the script and produce LA REINA DE ESPAÑA.

The reasoning is as follows: it is not necessary to obtain authorization from the first author when the transformation of the derivative work only takes from it those original elements that were not present in the original work from which it is derived, and this is because the author of the original work does not project his dominion over the parts of the derivative work that are the exclusive result of the creative activity of the first transformer.

For all the above reasons, the claims of the appellants are rejected.

Judgment nº 501/2020 of October 19, 2020, of the Regional Court of Madrid (Section 28).