Actors, artists and other figures in TV and cinema: an unknown legal dimension

Patricia Mariscal and Imanol de Hipólito, from Bardají & Honrado, shed light on the concept of actors and artists in television and cinematographic audiovisual works, figures that hide a broader legal dimension than it appears.

In general, people who appear on screen playing a role, whether in a film, a series or even a television program, manage to transmit a much greater fluidity and creativity than the majority of the public could provide. We could even affirm that people who go on stage or who are able to get behind a camera are endowed with a certain “artistic sense”, and thanks to him they manage to provoke emotions in the spectators.

Therefore, it might seem obvious that when talking about these people we refer to them as “artists” or “actors” depending on the case. However, not all the people who appear on the screen are artists, not all artists can be considered actors. Both terms hide a broader legal dimension than one might think at first and have legal implications not only from the point of view of intellectual property, but also in the areas labor and tax.

Identifying artistic work

From the perspective of Copyright, actor and artist law they mean the same thing; basically the actor is an artist who operates in the audiovisual field. Article 105 of the Intellectual Property Law (“LPI”) refers to the performer as "the person who represents, sings, reads, recites, interprets or performs in any way a work”.

The precept contains two key elements to determine whether a person's work is “artistic”: the activity (represent, sing, read, recite, interpret or perform) and the work on which it is projected such activity. It is therefore reasonable to think that if these two concepts come together in the same situation, we will be faced with an interpretation or execution that is protected by copyright and, in fact, in the vast majority of cases this is the case.

There is no doubt that the performance of a professional actor who plays the role of a certain character in a film is an artistic activity that can be protected from those provided for in article 105 LPI, but can the same be said of a television show host? And from a professor who teaches a class at the university? The answer is neither easy nor obvious, since not all activities that involve interpretation or execution and that are projected onto an intellectual work turn the subject who carries them out into an artist. In this sense, it is debatable that the activity of reading a novel aloud turns the person who recites into an artist, in the same way that we do not believe that the extra in a television series can be considered an artist for the purposes of article 105. LPI.

A debate that continues

Given the room for interpretation What does the item offer? 105 LPI Regarding the concept of “artist”, many of these issues have reached the courts, but even through these pronouncements it is not possible to establish a clear criterion of interpretation to determine when we are dealing with an artistic activity and when we are not. The debate is not limited to a merely theoretical level, since the acquisition of the status of artist entails the recognition of a series of moral and patrimonial rights on the interpretation that translates in the latter case into the possibility of receiving additional remuneration for such concept.

Section 28 of the Provincial Court of Madrid, in a ruling of November 6, 2020, subsequently confirmed by the Civil Chamber of the Supreme Court in its recent Order of January 25, 2023, determined that the activity carried out by a “literary expert” in the television program Ciphers and letters It was not artistic, since the claimant He did not execute a script nor was he shown to the public as a fictional character, but as your own personal profile. The Court noted that the plaintiff did not prove that he had carried out actions that could have been considered artistic, such as singing a song or reciting a poem, but rather he limited himself to generically stating his status as an artist without specifying the specific work performed or performed or the moment in which it was performed or performed. Furthermore, the Court considered that it was irrelevant to the classification of the “literary expert” as an artist the fact that he appeared in the credits of the program or that his contract provided for a transfer of intellectual property rights in favor of the production company. .

After the latest reforms, the artist status grants not only artists in the sense of the LPI, but also a wide range of subjects who operate in the sector performing, audiovisual and musical arts.

In the field laborFor its part, the term artist has a different meaning, much broader than that provided for in article 105 LPI and serves to determine whether or not the special regime provided for in Royal Decree 1435/1985, of 1, is applicable to an employment relationship. of August, which regulates the special employment relationship of artists in public performances. The application of the special regime for artists compared to the common labor regime has a series of specific implications, such as the possibility of entering into fixed-term employment contracts, enjoying lower tax withholding or calculating compensation at the end of the contract.

Following the latest reforms, the status of artist is granted not only to artists in the sense of the LPI, but also to a wide range of subjects who operate in the performing, audiovisual and musical arts sector, including people who perform necessary technical or auxiliary activities for the development of said activity such as the preparation, assembly and technical assistance of the event, tailoring, hairdressing and makeup and other activities understood as auxiliary.

Multiple sources to determine artistic work

From the above it is clear that the concept of artist that manages labor regulations has nothing to do with the concept of artist of article 105 LPI. Therefore, to determine whether the special regime for artists or the common regime It would be a mistake to resort to the definition of artist in the Intellectual Property Law. Rather, it will be necessary to comply with the provisions of the labor regulations and specifically with the provisions of the Royal Decree on artists, the Workers' Statute and the collective agreement that is applicable, if there is one.

There will be occasions when it is appropriate to apply to an employment relationship the special regime for artists even when the activity is not at all artistic according to the most common meaning of the term.

For this reason, there will be occasions in which it is appropriate to apply the special regime for artists to an employment relationship even when the activity is not artistic at all according to the most common meaning of the term. In this sense, it is worth noting the ruling of the Superior Court of Justice of Madrid of April 27, 2020, which understood that the activity of a contestant of a reality television should be considered as acting for the purposes of applying the Collective Agreement for Actors and the Royal Decree for Artists. According to the court: “Although it is true that the performance of the actor cannot be considered art, it is no less true that, being immersed in a rehearsal consisting of the recording of his daily activity with other people hired for the same purpose, he acted to a certain extent theatrically, since he adopted a certain role (...) all of this conditioned by permanent observation by the television camera and such performance being the one that is presented as a spectacle (...)>>

Definitely, Not all the people who appear on screen are artists, nor are all artists actors..

Patricia Mariscal and Imanol de Hipólito

Lawyers in Bardají&Honrado

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