What may be considered beautiful or ugly, art or kitsch, obviously lies in the eye of the beholder. Whether the design of an object of utility (patterns or models) may qualify as a work enjoying copyright protection shall therefore not depend on the extent to which it has an aesthetic effect.
In its judgement of September 12, 2019 (C-683/17), the CJEU has clarified that patterns and models, in addition to design protection, may enjoy copyright protection.. In order to qualify as a work under copyright law, their subject matter must be objectively identifiable and constitute an intellectual creation reflecting the personality and freedom of choice of its author (originality). The fact that the design unfolds a specific aesthetic effect beyond their form that is dictated by their function they serve, in contrast, is not significant for its classification as a work.
The question as to whether design imitations may also be challenged under copyright law is of major importance for the design industry: while the registered design unfolds a maximum protection of 25 years, copyright protection ends 70 years after the author's death at the earliest and does not require registration.
Not having registered design rights, the fashion company G-Star considered itself dependent to rely on copyright law when attempting to prohibit a competitor from imitating special models of jeans and t-shirts in Portugal. G-Star prevailed in two instances on the grounds that copyright protection of works of applied art would not require a particular degree of aesthetic value. The final appellate court referred to the CJEU the question of whether works of applied art enjoyed copyright protection on the same conditions as those of literature and art, i.e., if they have a certain originality such that they are the result of their author's intellectual creation or whether their protection was to be made dependent on their aesthetic or artistic value.
Already in earlier decisions, the CJEU had called for uniform terms of protection for objects of diverse categories of works, but it remained unclear whether those should also apply to works of applied art or whether a special level of aesthetic design continued to be required. The CJEU now removes this ambiguity only apparently; while the Court clarifies that copyright protection for works of applied art shall not depend on special requirements that deviate from those applying to other categories of works, it emphasizes at the same time that copyright protection and design protection shouldbe cumulated only in specific cases so as not to impair their fundamentally different objectives. The Court leaves open what those specific cases are, but clarifies that the criterion of aesthetic surplus – since it is the result of a subjective observation – is not suited to serve as threshold for assessing whether the object is a personal intellectual creation and hence original.
The mere fact that designs produce an aesthetic effect beyond the form that is prescribed by their object's function cannot justify copyright protection – vice versa, it is not a prerequisite for it either.
It will be particularly interesting to see how German courts will apply the decision. The German Federal Court of Justice had abandoned to place higher requirements on copyright protection for works of applied art already in 2013 (birthday train decision). In its previous insistence that these works should clearly surpass the average design, the Court no longer saw any justification after the implementation of the Design Protection Directive had transformed German design law, previously characterized as "small copyright," into an independent intellectual property right. However, the Federal Court of Justice had countered concerns of the German design industry about potentially damaging monopoly effects on variety, with the restriction that, in order to qualify for copyright protection it would still not be sufficient for the design to merely differ from existing forms. Rather, beyond the form that is prescribed by its function it would need to be shaped artistically in the dominant views in cultural and institutional circles. Even then, the work would enjoy a fairly small scope of protection. In consideration of the CJEU ruling, these restrictions should no longer apply. Since it is left open, however, which criteria may serve to determine whether an object qualifies as "own personal creation," fashion manufacturers should continue to register their designs.
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