O Sole Mio: CJEU's tune on copyright protection of works of applied art

• Works of applied art are not subject to a higher originality threshold than other works.
• Copyright protection depends on free and creative choices, not aesthetic appeal alone.
• Infringement occurs when creative elements are recognisably incorporated, not based on an overall-impression test.

The judgment arose from two disputes. In Sweden, furniture retailer Mio was accused of infringing copyrights in Asplund's Palais Royal dining tables by selling similar tables. The Swedish courts questioned how originality should be determined for works of applied art and whether similarity should be assessed based on the overall impression of the objects or their recognisable creative elements.

In Germany, USM, the creator of the modular Haller furniture system, sued Konektra for offering identical components and assembly services. The German courts asked whether works of applied art require higher originality standards than other works and whether factors such as the creator's intentions or later recognition in professional circles should influence the assessment of originality of a work of applied art.

In previous case law, notably Cofemel (C-683/17) and Brompton Bicycle (C-833/18), the Court already established that a work must be original, meaning it reflects the author's personality through free and creative choices and is identifiable with precision and objectivity.

In order to qualify for design right protection under EU law, novelty and individual character are required, not creativity. Copyrights and design rights can coexist, but they serve different purposes and different criteria are applicable.

The Court ruled that works of applied art are assessed under the same criteria as other works and that no higher standards apply vis-à-vis works of applied art compared to other types of works. A work qualifies for copyright protection if it is the result of the author's own intellectual creation by reflecting the personality of that author. Copyright protection requires originality, which means that the author made free and creative choices, whereby a free choice is not necessarily a creative one.

Factors such as the creator's intentions, its sources of inspiration, use of existing forms, later recognition, or the likelihood of similar independent creations, can be considered when assessing originality of works of applied art, but are neither necessary nor decisive. The focus must remain on the object itself and whether it embodies creative choices.

On infringement, the Court ruled that the decisive question is whether creative elements of the protected work have been recognisably incorporated into the alleged infringing object. The overall impression produced by the two objects and the level of creativity of the original work are irrelevant.

This judgment reinforces that works of applied art can enjoy copyright protection if such a work embodies the author's free and creative choices beyond technical constraints. However, the mere fact that choices have been made that are not dictated by technical constraints (free choices) is not enough to qualify for copyright protection. These choices must also be creative, yet, the Court has not provided guidance on what 'creativity' encompasses and how it should be assessed. Lacking such practical guidance, this ruling underscores the importance of documenting the creative decision-making process for works of applied art in case its creator intends to rely on copyright protection.

On the infringement side, the clarification of the Court bears important practical implications for certain jurisdictions. For instance, in the Netherlands, courts apply the same or a similar overall impression between a work of applied art and an allegedly infringing object as the decisive test when assessing copyright infringement. This judgment indicates that such national practices must be reoriented toward whether protectable creative elements were taken.

Would you like to know more or exchange ideas about the above developments or on the judgment on the scope of copyright protection for works of applied art? Please contact us, we look forward to discuss this with you.