SPAIN Law and Practice Contributed by: Rafael Mateu de Ros, Patricia Fernández Lorenzo, Javier Fernandez-Lasquetty and Luis Rodríguez-Ramos, Ramón y Cajal Abogados
9.2 Counterfeit NFTs Inauthentic or counterfeit NFTs are not to be circu - lated. If an NFT is a work of art, it enjoys the same rights as other works and may be subject to the same civil and criminal actions mentioned previously. 10. Gifts, Donations, Trusts and Inheritance 10.1 Planning for Generational Transfer of Artworks The generational transfer model for artworks can be either a foundation that manages the collection owned by the heirs (Spanish foundations are different to those used in other jurisdictions pro generational transfer), the co-ownership of the collection with certain rules or family-owned companies with shareholders’ agree - ments, or succession previsions included in the will. 10.2 Legal and Fiscal Issues in Artwork Succession Successions are subject to the rules of the Civil Code and the regional laws, which – depending on the region – allow or do not allow a limited freedom of disposal by the collector. 10.3 Tax Implications of Artwork Gifts and Donations Inheritance and gift tax applies to artworks. There is a succession tax on artworks, with regional regulations. Some of these regulations grant important reductions for artworks in the event of inheritance from the author, whereas other regulations grant a general reduction for descendants and ascendants that drops the effec - tive rate below 1%. 10.4 Artworks Exempt from Inheritance/ Donation Taxes There is an exemption for assets attached to an eco - nomic activity of the deceased that could be appli - cable and, as explained in 10.3 Tax Implications of Artwork Gifts and Donations , regional regulations provide significant reductions for artworks in the event of inheritance from the author.
tion and the obligations of their owner for their pres - ervation.
8. Photography 8.1 When Are Photographs Protected as Art? Photographic works are expressly mentioned in Span - ish law as a possible object of IP rights, so they enjoy the same rights as other works, according to the previous comments. Like any other work, they must comply with the requirement of originality and crea - tivity, and the courts have ruled on many occasions in this respect, mainly to distinguish them from mere photography. The Supreme Court has indicated that, in photography, creativity implies the contribution of an intellectual effort (ie, talent, intelligence, ingenu - ity, inventiveness or personality) that turns the pho - tograph into an artistic or intellectual creation. The uniqueness does not lie in the photographic object – not even in the mere technical correctness – but in the photograph itself, in its creative dimension. 8.2 Legal Protection for Different Types of Photographs Spanish law grants protection to what it calls mere photography, which are photographs that do not meet the requirements of a photographic work. Spanish law has not wanted to leave these photographs unpro - tected and recognises their documentary, journalistic, scientific, historical or commercial value – attributing to them the rights of reproduction, distribution and public communication, but not the right of transforma - tion or moral rights. This protection lasts for 25 years from January 1 following the date of publication. 9. Artworks and New Technologies 9.1 NFTs There is no legal definition of an NFT in Spain; the doctrine and the courts have used and admitted the definition and characterisation given internationally. The Spanish Copyright Law does not establish a numerus clausus as to protectable works, so the NFT will be considered as a work as long as it complies with the requirements of originality and creativity that are demanded of other works.
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