Verified as of 27 September 2026. If anything has changed, let me know and I will update it with the date of the change.
While preparing the corpus for an exhibition, I learned that one of the most costly questions in curatorial work is whether a work may be reproduced without paying a licence fee. The answer does not depend solely on the date of the work: it usually depends on when its author died, the type of creation in question, and the applicable transitional provisions.
This guide explains the basic calculation in Spain and the most confusing cases. It is not legal advice.
The general rule
Exploitation rights endure for the lifetime of the author and seventy years after their death or declaration of death. The calculation commences on 1 January of the following year. Consequently, the work enters the public domain on 1 January subsequent to the final year of protection, rather than on the anniversary of the death.
Example: for an author who died during 1990, the term is calculated from 1 January 1991 and concludes at the end of 2060. Their works enter the public domain in Spain on 1 January 2061, unless a special rule applies.
For works of joint authorship, the general term is calculated from the death or declaration of death of the last surviving co-author. Collective works and those published in parts may require a different calculation depending on their form of disclosure and the identification of the contributions.
The Spanish eighty-year exception
The fourth transitional provision of the Intellectual Property Act maintains the terms of the 1879 Law for authors who died before 7 December 1987. In practice, for authors to whom that provision applies, the term is eighty years from the death, calculated from the following 1 January.
Applying that rule:
- Federico García Lorca, who died in 1936: his works entered the public domain in Spain on 1 January 2017.
- Pablo Picasso, who died in 1973: his works will enter, as a general rule in Spain, on 1 January 2054.
- Salvador Dalí, who died in 1989: as he is not covered by the transitional provision, his works will enter, as a general rule, on 1 January 2060.
These are calculations of the Spanish term, not administrative declarations regarding each individual work. For foreign authors who died before December 1987, international protection rules, nationality, country of origin and case law also apply. The eighty-year rule should not be applied automatically without reviewing the specific case.
Anonymous and pseudonymous works
When the author is not identified, the rights endure for seventy years from the lawful disclosure of the work. The term is calculated from 1 January of the year following that disclosure.
If the pseudonym leaves no doubt as to the identity of the author, the rule based on their death applies. It also applies if the author reveals their identity before the term calculated from disclosure expires.
The absence of a visible signature does not, in itself, render a work anonymous. The relevant factor is whether the author's identity is known or can be established.
Unpublished works and late disclosure
If a work is lawfully disclosed after the death of the author, the calculation may vary depending on when the disclosure occurred and whether the identity was known. Furthermore, any person who lawfully discloses an unpublished work that is already in the public domain obtains certain exploitation rights for twenty-five years from 1 January following the disclosure.
This is why it is insufficient to verify that the original manuscript, drawing, or photograph is old. One must distinguish between the rights to the work, the potential rights derived from its first disclosure, and those of the edition used.
Photographs: photographic work and mere photograph
The law distinguishes between an original photographic work and a mere photograph.
A photographic work with sufficient originality follows the general copyright term: the lifetime of the photographer and seventy years, or the applicable transitional regime. A mere photograph, which does not reach that level of originality, receives a related right of twenty-five years from 1 January following its creation.
The Supreme Court confirmed in its Judgment 214/2011, of 5 April, that the distinction depends on creative originality, not on technical quality, effort or the documentary value of the image.
Faithful reproductions of visual art in the public domain
Article 14 of Directive (EU) 2019/790 establishes that, when the protection of a work of visual art has expired, the material resulting from its reproduction is not subject to copyright or related rights unless that reproduction is original in its own right. Spain transposed the directive via Royal Decree-Law 24/2021.
The rule prevents the reconstruction of exclusivity through a purely faithful reproduction of a visual work that is already in the public domain. It does not extend to photographs that incorporate original creative decisions regarding lighting, framing, perspective, staging, or other original elements.
Access to the digital archive may be subject to contractual conditions, service fees, or access restrictions independent of copyright. The fact that no new right arises over a faithful reproduction does not oblige an institution to provide high-resolution files free of charge.
What the public domain permits
Once exploitation rights have expired, anyone may use the work. Article 41 requires that authorship and integrity be respected in the terms set out in paragraphs 3 and 4 of Article 14. Attribution and integrity do not cease with the economic rights.
This does not mean that all uses are free from any limitations. The following may apply:
- rights over a subsequent translation, adaptation, critical edition, or arrangement;
- rights over photographs or other original reproductions;
- trademark, design, honour, privacy, or image rights;
- regulations concerning cultural heritage, access to collections, or export;
- contractual conditions relating to the copy or file used.
Ownership and copyright should also be kept apart. Owning a painting does not in itself grant reproduction rights; and the fact that a work is in the public domain does not grant physical access to the copy.
If the work is still protected
You will require authorisation unless the use is covered by a legal limitation. In the visual arts, VEGAP manages the rights of numerous authors and rights holders, but it does not necessarily represent all works or all rights. Before budgeting for an exhibition or publication, identify the rights holder, the intended use, the media, the territory, the duration, and the print run or scope.
Calculation method
- Identify the author and verify the date of death.
- Verify whether the author died before 7 December 1987 and whether the Spanish transitional provision is applicable.
- Add seventy or eighty years, as appropriate.
- Place the entry into the public domain on the following 1 January.
- Check whether it is a work of joint authorship, or an anonymous, pseudonymous, unpublished, or serialised work.
- If you are using a specific edition, translation, or photograph, check its own rights.
- For foreign authors or ambiguous situations, review international protection before publishing.
On the open conversation
This guide summarises the duration of rights under Spanish legislation. Foreign works, complex collaborations, posthumous disclosures, and disputed chains of title require specific analysis. If you work in rights management, museums, or publishing and notice an error or a necessary nuance, the guide remains open.
Sources
- Royal Legislative Decree 1/1996, of 12 April, approving the consolidated text of the Intellectual Property Act, arts. 14, 26 to 30, 41, 128, 129 and 130, and the fourth transitional provision.
- Law 27/1995, of 11 October, transposing Directive 93/98/EEC.
- Directive (EU) 2019/790, of 17 April 2019, art. 14.
- Royal Decree-Law 24/2021, of 2 November.
- Supreme Court, Civil Chamber, Judgment 214/2011, of 5 April, ECLI:ES:TS:2011:2456.