Utilitarian works and applied art

A utilitarian work, or work of applied art, is a creation of form that serves a practical function, such as a piece of furniture, a garment, a lamp, a bottle or an object of industrial design. The French Intellectual Property Code expressly lists works of applied art among protectable works of the mind (Article L. 112-2 of the French Intellectual Property Code), and protection is granted whatever their kind, form of expression, merit or purpose (Article L. 112-1 IPC). A utilitarian purpose is therefore no obstacle to copyright, which is cumulative with design protection.

Conditions of protection

A utilitarian work is protected on the sole condition that it is original, that is, that it reflects its author’s personality through free and creative choices. The Court of Justice of the European Union holds that the protection of an object by copyright cannot be made subject to an additional requirement of aesthetic effect or artistic value, the sole criterion being originality, assessed in the same way for all works. It also holds that an object whose shape is at least in part necessary to achieve a technical result may be protected, provided that the shape reflects creative choices, but that protection is excluded where the shape is dictated exclusively by function.

Cumulation with designs

Pursuant to the theory of the unity of art, France practises full cumulation, the object being protectable both by copyright, without formality and for seventy years after the author’s death, and as a registered design, for twenty-five years at most, provided that the conditions specific to each regime are met. EU law requires this cumulation through Directive 98/71/EC and Regulation (EC) No 6/2002, while leaving it to the Member States to set the conditions of copyright protection, which the Court of Justice has largely harmonised. The two titles may have different owners, the employer or the commissioning party possibly holding the design while the creator retains the copyright, unless assigned.

Litigation

The infringement action falls within the jurisdiction of the judicial court. In practice, the claimant often bases its claim on both copyright and design right, and in the alternative on unfair competition and parasitism for the taking of unprotected elements. The main hurdle is the demonstration of originality, which requires the claimed features to be identified precisely and distinguished from the shape dictated by function and from the commonplace shapes of the sector.

Key points

A utilitarian work is protected by copyright as soon as it is original, with no requirement of artistic merit, and may combine that protection with design protection. A shape dictated exclusively by technical function is excluded. To secure a design product, file a design within the grace period, keep the creation documents that establish the aesthetic choices, and organise by contract the assignment of the creator’s copyright.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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