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 2026

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

Cookies Settings

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

From Japan to Southeast Asia, domestic and regional firms picked up some of the biggest prizes, while key foreign players maintained momentum
Earlier this month, Managing IP had exclusively reported that the French arm of Taylor Wessing was minded to pull out of the deal
Our latest podcast examines how Weil’s IP practice evolved, where its practitioners could (and will) go next, and which firms and markets stand to benefit from the redistribution of talent
Former Latham partner Chris Henry and transactions lawyer Liza Cotter are heading to the firm as Weil’s IP practice starts to disperse
Rival IP teams return to court for a closely watched appeal over AI and copyright, but observers hoping for answers to some of the technology’s biggest legal questions may be left disappointed
Eight years after its launch, members of the Australian patent firm’s Singapore office explain its growth strategy over the past year
Lawyers at Bowmans Kenya discuss the digital blind spots posed by the transition from physical ledgers to cloud databases and digital co-development models
The Powell Gilbert co-founder discusses the confidence required to launch a firm, building an enduring patent litigation practice and why developing the next generation has changed her measure of success
Cabinet M Oproiu’s Raluca Vasilescu explains why AI is changing what clients expect from patent attorneys, where the technology is overhyped and what the next generation will need to do differently
As clients demand more flexible fees and AI-driven efficiencies, IP firms are rethinking pricing without abandoning the value of their work
Gift this article