Applied works of art. Delimitation of copyright and industrial designs

In the first preliminary question, the German Federal Court of Justice asks the CJEU whether there is a rule-exception relationship between the protection of designs and models and copyright that requires stricter requirements of originality to be imposed on works of applied art than on other types of works. The Court of Justice begins by recalling that the concept of «work"It requires the concurrence of two cumulative elements: originality and sufficient expression. For an object to be considered original, it is both necessary and sufficient that it reflects the personality of its author, manifesting their free and creative decisions. When the creation of an object is determined by technical considerations, rules, or other requirements that leave no room for the exercise of creative freedom, that object cannot be considered to have the necessary originality to constitute a work of art."

The Court of Justice then establishes a clear distinction between the criteria applicable to each protection regime, recalling that for designs and models, an objective criterion based on novelty and individuality applies, while for copyright, a subjective criterion based on originality applies, understood as a reflection of the author's personality through free and creative decisions. Three fundamental consequences follow from this: i) objects protected by a design or model are not, in principle, equivalent to those that constitute works protected by copyright; ii) there is no automatic link between the granting of protection under design and model law and the granting of protection under copyright; and iii) the requirements for such protection—novelty and individuality, on the one hand, and originality, on the other—should not be confused.

The conclusion reached by the CJEU from this reasoning is that, although the protection afforded to designs and that guaranteed by copyright are not mutually exclusive and can be granted cumulatively to the same object, such cumulative protection is limited to certain cases. Specifically, it requires that the author has created a unique work that bears the imprint of their personality, which as such is protected under the 2001 / 29 / CE DirectiveHowever, there is no rule-exception relationship between the two protections that justifies imposing stricter requirements on applied arts.

In the first and second preliminary questions in Case C-580/23 and the second and third in Case C-795/23, the referring courts ask the CJEU whether, when assessing the originality of objects of applied art, factors relating to the creative process and the author's intentions should be taken into account, or only the elements perceptible in the object itself. They also ask what role additional factors play in this assessment, such as the use of forms from the general stock of designs and models, inspiration from existing objects, the possibility of similar independent creations, or recognition in specialized circles.

The Court of Justice emphasizes that the assessment of originality must take into account the specific nature of the type of work in question. In this respect, in works of applied art, the creators' decisions may be dictated by technical limitations, ergonomic or safety restrictions, and industry standards or conventions. However, the Court clarifies that an object that meets the originality requirement may enjoy copyright protection, even if its creation was partially determined by technical considerations, provided that this determination did not prevent its author from reflecting their personality in it, expressing free and creative decisions. Nevertheless, the Court establishes a clear limit: components of an object characterized solely by their technical function do not meet the originality criterion, since copyright protection does not extend to ideas.

It follows from the above that, in the field of copyright, the creative nature of the author's decisions cannot be presumed. The national court must search for and identify the creative decisions in the form of the object in order to declare that it is protected. Even when the author has made decisions not dictated by technical or other limitations, the creative nature of these decisions cannot be presumed within the meaning of copyright law.

Finally, the CJ reiterates the statement made in the judgment cofemel (Case C-683/17) in the sense that, although artistic or aesthetic considerations come into play in creative activity, the fact that a model generates such an effect does not, in itself, allow us to determine whether said model constitutes an intellectual creation that reflects the freedom of choice and personality of its author and, therefore, whether it qualifies as «work"protectable by copyright. As regards the possible consideration of the author's intent during the creative process, the Court recalls that the concept of «work"It implies the existence of an object that can be identified with sufficient precision and objectivity. The author's intentions lie in the realm of ideas and, therefore, can only be protected to the extent that the author has expressed them in the work."

Regarding the importance that should be given to other circumstances when examining originality, the Court begins by recalling that it is for the jurisdictional body to take into account all the relevant elements of the specific case as they existed during the conception of the object, regardless of external factors subsequent to its creation. 

Regarding the use of forms from the general stock of designs and models, the CJEU states that this does not in itself preclude originality. An object composed solely of forms found in the general stock can be original when its author has expressed their creative decisions in the arrangement of those forms. What is relevant, therefore, is not the novelty of the individual elements, but the originality of their combination or arrangement. As for inspiration from existing objects, the Court distinguishes two different scenarios. When the object is a «variantA work based on an existing work by the same author (by definition, an original work) may enjoy protection provided that the incorporated creative elements remain and constitute the imprint of that author's personality. However, when the authors are different, the object must be considered an inspired work, that is, a work that does not reproduce the creative elements of another work verbatim, but rather draws inspiration from them in a different way. This new work may also enjoy protection in itself, provided that the requirements of originality are met.

Regarding the existence of identical or similar creations, the CJEU holds that, although copyright law does not establish a novelty requirement, the creation by another author of similar or identical objects prior to the creation of the object for which protection is sought may constitute a relevant indication of a low degree, or even a complete lack, of originality. However, in the case of objects of applied art, the possibility that two authors may have independently made similar or even identical creative decisions cannot be entirely ruled out. Finally, with respect to circumstances such as the presentation of the object in art exhibitions or museums and its recognition in specialized circles, the CJEU is categorical: such circumstances, which are external to and subsequent to the creation of the object, are neither necessary nor determining factors in themselves.

Regarding the questions raised by the Swedish court concerning the applicable criteria for determining the existence of copyright infringement, the Court of Justice begins by recalling that, in the field of copyright, infringement results from the use of a work without the author's authorization. This unauthorized use may constitute infringement even when it relates to a relatively minor element of the work, provided that the element itself embodies the author's unique intellectual creation. However, for the purposes of assessing the existence of copyright infringement, comparing the overall impression produced by each of the conflicting objects cannot be decisive, since this criterion pertains to the protection of designs, not to copyright.

The Court of Justice further clarifies that when an object possesses the characteristics of a work, it must enjoy copyright protection, and the degree of creative freedom available to its author does not condition the scope of that protection, which cannot be less than that recognized for any original work. The Court adds, specifically regarding utilitarian objects, that the existence of different possible ways to achieve the same technical result, while demonstrating the existence of a choice, is not decisive in assessing the factors that guided the decision made by its creator. Similarly, the intent of the alleged infringer is irrelevant in this regard.

Regarding the existence of a common source of inspiration, the CJEU distinguishes two situations. On the one hand, only the «nuevos"Creative elements must be original in the derivative work, and only the reproduction of these new elements will constitute a possible copyright infringement. On the other hand, merely following the same trend or artistic style as the author of a previous work does not constitute infringement unless specifically identifiable creative elements from that previous work are incorporated."

The CJEU finally addresses the issue of similar independent creations. Although the possibilities for creativity are limited for technical reasons in the case of applied arts objects, such a situation cannot be entirely ruled out. If the existence of a similar independent creation is proven, this does not constitute copyright infringement, since the essential element of use or reproduction of the protected work is lacking. The Court concludes with a crucial clarification: the mere possibility of such a situation—that is, the mere theoretical possibility that another author could have independently created a similar object—cannot justify the denial of copyright protection.