Legal skirmishes over the best James Bond and Mortadelo quotes

James Bond , the most famous spy in Her Majesty's service, has been involved in some of his most unusual missions this year. In May, Josef Kleindienst, an Austrian millionaire with a bidding license, started a war over the iconic 007 's trademark and some of his immortal phrases— "Bond, James Bond" —claiming that it had fallen out of use because a film hasn't been released since 2021. Furthermore, Amazon bought the rights to the famous agent's franchise and is preparing his triumphant return to the big screen. And while there's only one father—and Bond's is called Ian Fleming—fictional characters with a star often star in all kinds of legal disputes between those who aspire to exploit the goose that lays the golden eggs.

Following the recent skirmishes in the Bond universe, a question arises: who truly owns these heroes of paper and ink? The law dictates that the character belongs to whoever created it, be it a novelist, screenwriter, or cartoonist. Creation grants its parents paternity of the child from the first moment and, with it, a wide range of rights over its name, existence, and economic exploitation. Registration, although useful as a shield of proof, is not mandatory. In fact, "registration in the intellectual property registry is optional," clarifies Inés de Casas, senior associate at Elzaburu.

However, there are multiple legal formulas that allow for the indefinite assignment of the economic exploitation of a work , even through licensing and publishing contracts or audiovisual adaptations. However, the author always retains moral authorship of his creation, as this is an inalienable right. Consequently, publishers and producers must honor intellectual authorship and the essence of the characters. When conflict arises, justice decides. This was the case in 2003, when the Barcelona Provincial Court ordered Ediciones Zeta to pay €60,000 to the owner of the Tomb Rider video game for publishing an eroticized version of its heroine, Lara Croft, in the magazine Interviú, thereby violating her moral rights.

There are cases in which these fictional figures escape the strict control of their creators from the moment they are born. As Óscar García, a partner at Balder, explains, "if the author creates the character under a contract with a publisher or company, the property rights are usually automatically assigned to that entity." That is, if a scriptwriter creates a character for a comic book series for a publisher, it is usually the publisher who exploits it commercially. Contractual silences, the expert emphasizes, are a breeding ground for conflicts between creators and publishers, such as the dispute between the creator of Mortadelo and Filemón in the 1980s.

In 1985, after leaving Bruguera, Francisco Ibáñez fought for the rights to Mortadelo and Filemón , the legendary agents of the TIA (Air-Terrestrial Investigation Technicians). The publisher, which had been publicizing the delirious adventures of these clumsy spies for almost three decades, continued publishing their cartoons with other artists. Meanwhile, Ibáñez launched the magazine Yo y Yo—only six issues were published—to keep his characters alive under a pseudonym, given that the names were for the publisher's use. It wasn't until 1991, thanks to a legal change, that he managed to regain control of them.

The importance of details

This dispute highlights the need to spell out contracts from the outset. “The lack of clear clauses regarding ownership, permitted uses, or rights to future adaptations leaves legal loopholes that are often interpreted to the detriment of the author,” García points out. These loopholes, he adds, “have allowed everything from the indefinite exploitation of characters without proportional compensation to the creator, as occurred with Ibáñez, to disputes over co-authorship and film rights.”

The law fills in certain gaps. For example, when the assignment contract does not specify the duration or markets for the exploitation of the work, "Article 43 of the Intellectual Property Law limits the transfer to five years and to the national territory," notes Inés de Casas. Likewise, in the publishing world, notes Antonio Muñoz Vico, an intellectual and industrial property partner at Garrigues, "publishing contracts have a maximum legal duration of 15 years"; although, in practice, "shorter terms are usually agreed upon," he explains. According to the lawyer, it is common to sign one contract per literary work—the average royalty for a novelist is 10%—and "it is not common to retain the rights to a character indefinitely." In Spain, "the assignment of the entire future work is void," he points out.

The film world plays with other deadlines. In Spain, production companies lose their exclusivity to exploit a work 15 years after the rights for its audiovisual adaptation are transferred. From that moment on, the author is free to negotiate, "unless they have assumed other types of commitments," Muñoz Vico clarifies. The expert cites the various film adaptations of Manolito Gafotas as an example.

Today, creators and companies face a new villain: artificial intelligence (AI). In the US, Disney and Midjourney are engaged in a legal battle over the unauthorized use of copyrighted works in the training of AI models, a case that could redefine the boundaries between fair use and infringement. Legislation, argues Violeta Arnaiz, Director of Intellectual Property, AI, and Software at Pons IP, should move toward a "licensing model to allow such training," provided that such authorization is understood to be "part of the content of intellectual property rights."