The Court of Justice of the EU revisits “authorial creativity” applied to design

Must a design object be particularly creative to be protected by copyright?

One of the most important clarifications of the judgment concerns a widespread misconception: the idea that industrial design objects must have a higher level of originality than other protected works (novels, films, paintings, etc.) in order to qualify for copyright protection.

The Court of Justice rejects this view: there is no stricter standard for design objects. The criterion is always the same for all works – the presence of free and creative choices reflecting the author’s personality.

In practical terms, this means that an industrial product is assessed like any other work. It does not matter that it is intended for mass production or that it has a practical function. If it incorporates recognizable free and creative choices, it may be protected. If it does not, it falls outside copyright protection, even if it is new or commercially successful.

It is in this context that the distinction between copyright and registered design finds its rationale.

Protection of designs and models is based on different requirements, such as novelty and individual character, assessed by comparing the product with what already exists. Copyright, by contrast, does not require novelty (at least not in an absolute sense) and is not based on comparison with other products, but on the presence of a creative contribution (Article 1 of the Italian Copyright Law).

The consequences are very practical:

• an object may be registered as a design but not also protected by copyright if it lacks appreciable creativity;
• conversely, an object may be protected by copyright—even without registration—if its form expresses free and creative choices.

In summary, registered design and copyright do not coincide and do not replace each other. They are different tools, which may coexist but operate according to autonomous logics.

The key question therefore remains: does this product truly express a creative choice, or is it merely the result of a good technical or commercial solution?

How is creativity assessed in practice?

The starting point of the analysis is the object as it appears. The Court clarifies that originality must be assessed “in the object,” that is, in what is concretely and objectively perceptible. Abstract reasoning is not enough: one must examine the product and identify which elements of its form derive from free and creative choices and which are dictated by necessity.

This makes the assessment highly practical. The question is not how the project originated, but what is visible in the final result.

On this point, the Court is also clear regarding the creative process. Intentions, sketches, and inspirations may be considered, but only insofar as they are reflected in the object’s form. It is not enough to claim creative choices; they must be evident and recognizable in the product. Otherwise, protection would risk depending on subjective or unverifiable elements.

The Court states explicitly that “all the relevant aspects […] as they existed when the subject matter in question was created, irrespective of factors external and subsequent to its creation” must be taken into account. This excludes, for example, the idea that artistic value recognized after creation is decisive: “the display of subject matter in art exhibitions or museums and its recognition in professional circles, those circumstances, which are external and subsequent to the creation of that subject matter, are not […] either necessary or decisive as such.” (I recommend the article That “artistic value” the European Union doesn’t require (but Italy does) for further insight into the differences between EU and Italian legislation).

Another important point concerns designs that use already known elements. The fact that a product recalls existing forms does not automatically exclude protection. Originality may also arise from the combination of common elements, if that combination reflects creative choices. In such cases, however, protection will cover only what is actually creative, not necessarily the work as a whole.

In summary, whether copyright protection exists depends on identifying which elements of the form are dictated by necessity and which are the result of creative choice.

When does copyright infringement occur?

The Court clarifies that copyright infringement is not assessed in the same way as in registered design law and requires a more focused analysis. The first step is to verify whether there has been unauthorized use; the second, decisive step is to determine whether the creative elements of the work have been reproduced. It is therefore not enough for two products to be similar: similarity is relevant only if it concerns what is actually protected – namely, free and creative choices.

On this point, the Court distances itself from the “overall impression” criterion typical of design infringement. In copyright law, the comparison is more targeted: one must verify whether the work is “recognizable” in the contested product. This means that even partial reproduction may be relevant, but only if it concerns creative elements rather than technical or standard features.

Another important clarification concerns the level of creativity required for protection. Even a work with limited creative content may be protected: if a creative element exists, its reproduction may constitute infringement. It will be necessary to verify in concreto that there has been no reproduction of another’s creative elements.

Precisely for this reason, the Court emphasizes that many similarities are lawful. Technical solutions, industry standards, or design trends may lead to similar results without necessarily implying copyright infringement. In such cases, the essential element of infringement – appropriation of another’s expressive form – is lacking.