France: Originality and beauty are not the same

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

France: Originality and beauty are not the same

Sponsored by

beau-de-lomenie.png

European regulations provide the possibility for works of applied art to benefit from both design right protection and copyright protection (for artistic work). Each form of protection is subject to its own specific rules. The scope and conditions of protection by copyright are subject to national rules.

The Court of Justice of the European Union (CJEU) has clarified the conditions for protection by copyright.

The litigation involved a designer. He complained that several of his clothing designs had been copied and he claimed copyright protection for these designs as original intellectual creations, as they were works producing an aesthetic effect. The first and second instance courts in Portugal ruled that "copyright benefits applied art works, industrial design and design works as long as they present an original character, namely they result from an intellectual personal creation from their author, without requiring a certain aesthetic or artistic value", deciding that the relevant clothes designs indeed benefit from such protection.

The CJEU was then asked to rule on whether a design could qualify as a work of art under copyright law,on the sole condition that the design produces, beyond its utilitarian purpose, an aesthetic effect.

The court first underlined that the notion of work is an autonomous concept of the European Union that must be given a uniform interpretation throughout the union, and needs two cumulative elements:

  • An original object – this object must reflect the author's own personality, expressing his original and personal choices. An object only realised under technical considerations that do not allow any creative freedom cannot be qualified as original

  • An object that can be identifiedobjectively and precisely enough, so it may be clearly known. The object cannot be identified on the basis of sensations, which are inherently subjective

The court then ruled that the aesthetic effect that might result from a design derives from the subjective sensation of beauty felt by any person who looks at it and is not objective and precise. Hence, even if these aesthetic considerations contribute to the creation, the fact that an aesthetic effect results from the design per se is not sufficient to determine whether the design is a work of art (decision of September 12 2019 (C-683-17), on a preliminary question of the Portugal Supreme Court).

For the full version of this article, please click here: http://bit.ly/IPNewsBDL1019

marie.jpg

Aurélia Marie

Cabinet Beau de Loménie

158, rue de l’Université

F - 75340 Paris Cedex 07 France

Tel: +33 1 44 18 89 00

Fax: +33 1 44 18 04 23

contact@bdl-ip.com

www.bdl-ip.com

more from across site and SHARED ros bottom lb

More from across our site

Value-added services give in-house counsel the satisfaction that they are getting more value for money, while law firms get the opportunity to win more work
A team at Boies Schiller Flexner is advising shoe company Kizik and parent company HandsFree Labs in the dispute
Nokia’s latest enforcement actions against Geely and Transsion joining Via LA’s AAC pool were also among the top talking points
Benjamin Kelly, the firm’s fifth IP partner hire in a little over one year, has experience in patent and trade secret disputes involving complex technologies
Half-year Talent Tracker data shows Pierson Ferdinand was among the most prolific hirers in the US, while in Europe, there has been a notable UPC swing
Exclusive data reveals in-house counsel want external legal advisers to build better client relationships and add value beyond routine work
Brett Sandford acted for Perplexity AI, which fended off the threat of a preliminary injunction to launch an AI-powered web browser
Stephen Yang joins us for our ‘Five minutes with’ series to explain why his role requires him to wear many hats
The complaint follows a declaratory ruling issued by the England and Wales High Court last month that said Samsung is entitled to an interim licence
Tobias Hahn explains how the firm's multi-jurisdictional setup enabled it to secure an injunction on behalf of Fujifilm relating to defendant Kodak’s non-UPC activity
Gift this article