Spanish Supreme Court recognises co-authorship in pop art dispute - Swedish Court: Shein infringed Nelly’s copyright

Spanish Supreme Court recognises co-authorship in pop art dispute

The Spanish Supreme Court has settled a dispute over the authorship of 221 pieces of contemporary art by confirming that Japanese painter Fumiko Negishi is the co-author of the works, which were previously attributed to Spanish pop artist Antonio de Felipe.

De Felipe is renowned for reinterpreting film and mass-culture icons with vivid colours and advertising influences. Among his notable works are Marilyn Warhol, Saving Private Chaplin and The Clone Rebellion. Meanwhile, Fumiko Negishi is a painter who was trained in Western techniques at Joshibi University of Art and Design and the Complutense University of Madrid. Between 2006 and 2016, she worked in De Felipe’s studio, producing numerous canvases based on his ideas, commissions, photographs and sketches, to which he occasionally added lines or graphic marks.

The dispute began in 2017 when Negishi filed a lawsuit to be recognised as the author, or alternatively the co-author, of 221 works attributed exclusively to De Felipe. At first instance, Commercial Court no. 3 of Madrid (Juzgado de lo Mercantil) dismissed the claim, stating that, under Spanish Intellectual Property Law (TRLPI), co-authorship of collaborative works requires an independent creative contribution on an equal footing, and that in this case there had been a subordinate studio assistant relationship. The court considered Negishi's involvement to be essentially technical or instrumental. While De Felipe set the commissions and themes and supplied photos and sketches, Negishi merely executed his instructions, lacking any autonomous authorial contribution.

In 2021, Negishi appealed to the Madrid Provincial Court (Audiencia Provincial), which shifted the focus to what each person had actually contributed. The court noted that throughout the relevant period, Negishi worked at the studio every weekday morning, receiving guidance on themes or commissions before executing the paintings independently for hours, with only the occasional final touch by De Felipe. Contrary to the Commercial Court’s interpretation of Article 6 TRLPI, which presumed sole authorship based on Negishi's status as a 'studio assistant', the Provincial Court held that employment does not exclude authorship where genuine creativity is involved. Since transforming those concepts into finished artworks required creative decisions that reflected Negishi's personal style, her role was considered essential rather than merely technical, and she was recognised as a co-author under Article 7 of the TRLPI.

De Felipe then filed a cassation appeal with the Civil Chamber of the Supreme Court, which upheld the Provincial Court's decision. The Court recognised Negishi’s contribution as original and distinguishable in the final result, in line with the concept of collaborative work. Furthermore, it pointed out that authorship does not require hierarchical equality or joint conception of the idea, but rather an identifiable creative contribution in the execution that translates those ideas into images through free choices and a personal imprint. However, this standard does not automatically grant authorship to every studio assistant, the decisive factor is genuine creativity in the specific case, which was proven here. As a result, the Supreme Court confirmed the measures ordered by the Provincial Court and required De Felipe to publicly acknowledge Negishi’s co-authorship, notify the buyers of the 221 affected works, issue the corresponding certificates and publish an announcement at his own expense in a nationally circulated art magazine.

Swedish court: Shein infringed Nelly’s photo rights

In September 2024, a dispute arose between the Swedish retailer Nelly and the Chinese fashion platform Shein. Customers had alerted Nelly to the fact that its photographs were appearing on product pages on the Swedish version of Shein’s website. In response, Nelly filed a copyright infringement action with Sweden’s Patent and Market Court against three Shein group companies: Infinite Styles Ecommerce (Shein’s operative branch in Ireland) and parent companies Roadget Business and Dublin-based Infinite Styles Services. 

The court assessed whether Nelly’s photographs had been copied and made available to the public on Shein’s Swedish website without authorisation. After reviewing the evidence, over thirty images, mostly of best-selling garments, the court found that Infinite Styles Ecommerce had reproduced and published Nelly’s protected photos without authorisation, thereby infringing Nelly’s exclusive rights. As a result, the court prohibited Infinite Styles Ecommerce from using Nelly’s photographs further, ordered it to pay a penalty of SEK 500,000 (€66,950), plus Nelly’s legal costs and interest. However, it considered that the evidence was insufficient to extend liability to the parent companies Roadget Business or Infinite Styles Services. As the claims against the other two group companies were dismissed, Nelly was ordered to cover their legal costs, totalling over SEK 1 million (€133,900).

After the ruling, Shein stated that it takes all infringement claims seriously and that the images in question had been swiftly removed. However, Nelly’s CEO has expressed disappointment regarding the cost allocation, noting that the company is considering appealing against the decision within the statutory deadline.