Original and creative designs can be copyrighted: AG
Original designs can be granted copyright protection, according to an advocate general (AG) of the Court of Justice of the European Union (CJEU).
In 2013, Dutch fashion brand G-Star filed a copyright infringement claim against Tiffosi, a clothing brand owned by the Portuguese company Cofemel.
G-Star claimed that jeans, sweatshirts and t-shirts sold by Cofemel had a design identical to one of its clothing lines. It argued that its clothing line was an original intellectual creation and as such, a copyrighted design work.
In January last year, the Portuguese Supreme Court referred the case to the CJEU asking for clarification on copyright protection for designs.
Specifically, the court asked the CJEU whether originality of a design was the central criterion for granting protection under copyright law. It also asked whether European law determines that a design must be a “work of art” or “artistic creation” to be eligible for copyright protection.
In the opinion, published yesterday May 2, AG Maciej Szpunar said a “work of art” should be defined not only as a result of an author’s own intellectual creation, but also as a reflection of the author’s personality and the result of a “free and creative” effort.
Szpunar said that work devoid of any creativity could not be protected under EU law. While he said that designs which fulfilled the originality and creativity requirements could be granted copyright protection, he also considered concerns that such a ruling would result in excessive protection for designs.
He said a “strict application of copyright by national courts would be able to remedy, to a large extent, the disadvantages resulting from the combination” of design and copyright protection. He said the threshold of originality adopted in copyright law is not usually very high, but “it is not non-existent”.
Szpunar said “copyright and design rights have different purposes”, noting that design rights protect the investment in the creation of designs against imitations by competitors, whereas copyright ignores this protection against competition.
“What copyright protects, at least through economic rights, is the possibility of unhindered economic exploitation of the work,” Szpunar said.
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