Criteria for evaluating an 'obra fotográfica'. Ofoto Test proposal

Abstract

The Law of Intellectual Property (LIP) classifies photographs for the purposes of protecting their rights according to two models: “obra fotográfica” and “mera fotografía”. This is an exceptional division in regard to all the other original creations (literary, artistic and scientific), something which makes it, by comparison, questionable from the very beginning. Different time periods are established for the protection of the rights of each one of these models: 70 years for the obra fotográfica and 25 for the mera fotografía. This aspect becomes even more complicated when the LPI assigns two different values to the obra fotográfica: originality and creativity, two characteristics which are as subjective as they are vague, and so they can be interpreted in a variety of ways. The goal of this article is to propose a series of specific criteria using the Ofoto test, for the purpose of evaluating obras fotográficas according to the values established by the LPI (originality and creativity), but based also on the intellectual, creative and formative aspects and by taking into account other factors related to judicial rulings. The document has been studied by over twenty teachers and expert professionals, and its final goal is to provide a valuable assessment tool for all the agents involved: authors, jurists, entities managing legal rights and professionals responsible for documentation centers.