by Avv. Giuseppe Croari – Avv. Salvatore Benigno
On several occasions, fashion houses have appeared before courts to establish the artistic value of their products in order to obtain stronger legal protection. However, judges in different European States have not always reached uniform conclusions.
As a result, despite the European legislator’s intention to harmonize the law of the Member States, manufacturers have faced uncertain application of the relevant legislation and limited predictability as to the protection of their products.
The Case
The Court of Justice of the European Union recently addressed the matter in its judgment of 4 December 2025, resulting from the joinder of Case No. C-580/23, referred by the Svea hovrätt, Patent- och marknadsöverdomstolen (Stockholm Court of Appeal for Intellectual Property and Commercial Matters, Sweden), and Case No. C-795/23, referred by the Bundesgerichtshof (Federal Court of Justice, Germany).
The judgment of the Court of Justice of the European Union originated from two similar disputes brought before the Swedish courts in the first case and the German courts in the second.
In both disputes, the two manufacturers alleged infringement of copyright by competitors who produced furniture that was analogous to and likely to be confused with their own.
Although the ruling arose from disputes concerning furniture, the principles set out therein apply equally to any other production sector, including textiles and apparel.
When a Product Becomes a “Work”
During the various instances of the respective proceedings (one Swedish, the other German), the issue arose of defining the criteria for determining how and when a product — typically protected under design law — becomes a “work” within the meaning of copyright legislation.
In particular, the referring courts raised the following questions:
- whether the criteria for determining whether a product possesses artistic value are the same as those applicable to any other intellectual creation governed by copyright law, or whether, given the existence of specific legislation applicable to utilitarian products (namely national and European design law), distinct and more stringent criteria apply;
- whether, in order to define the artistic character of a product, it is necessary to assess the intention of the inventor/author at the time of creation, or whether objective criteria relating to the product itself must be applied;
- what criteria must be followed in determining the artistic character of the product and their respective relevance.
Accordingly, in order to classify a product as a work of art, no additional or more stringent requirements apply beyond those provided for literary, musical, cinematographic or any other works protected under copyright law.
Clarifications
Having made this preliminary clarification, the European Judges reiterated that, in order to qualify as a work, an object must be “original in the sense that it constitutes the author’s own intellectual creation.”
The Court further reaffirmed that, for an object to be considered original, “it is necessary and sufficient that it reflects the personality of its author, by expressing the free and creative choices of that author.”
The Solution of the Luxembourg Court
The foregoing does not constitute a novelty in European case law, which has repeatedly set out the above principles in defining the concept of a work eligible for copyright protection.
However, by reiterating these principles in the present case, the Court confirmed that products intended for mass production may also be subject to copyright protection without the need for additional or different requirements.
The Judges in Luxembourg further clarified, inter alia, that:
- it is not sufficient that a product produces its own and significant visual effect from an aesthetic standpoint in order to be considered original. A work is original only where it reflects and manifests the personality and the free and creative choices of its author;
- choices dictated by various constraints – in particular technical constraints – that limited the author during the creation of the object cannot be regarded as free and creative, nor can choices that, although free, do not bear the imprint of the author’s personality, thereby depriving the object of individual character;
- the author’s intentions may be taken into consideration by the court called upon to rule on the originality of a product, provided that such intentions are expressed in the object itself. Outside such circumstances, the author’s intentions, sources of inspiration, as well as the recognition that the product has received in specialized circles – even if examined by the court – cannot have a decisive function in the assessment of originality.
