Milan Fashion Week and Fashion Law Trends – Does the Cofemel decision marks the end of “artistic value”?

By Valentina Mazza and Andrea Michelangeli

As the Milan Fashion Week goes on in these days, we are eager to keep you updated with the very most recent fashion law topics and matters.

This time we speak about copyright after that on 12 September 2019, the CJEU issued the long-awaited decision on the Cofemel case C-683/17, which opens a new path for the copyright protection of designs in the EU and in Italy.

The case involved G-Star Raw CV and Cofemel – Sociedade de Vestuário SA, two companies active in the sector of clothing, including design, production and sale of materials. G-Star accused Cofemel of copying its designs related to jeans, sweatshirts and t-shirts products, claiming that its models constituted original intellectual creations qualified as “works” and protected under Portuguese Copyright Law. On the other side, Cofemel argued that such models could not be qualified as “works” and, hence, were not copyrightable.

As a result, the Portuguese Supreme Court, in course of the national dispute, asked the CJEU, by means of a preliminary ruling, to clarify the interpretation of Article 2(a) of the InfoSoc Directive, which states that “Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: … for authors, of their works“. In particular, the key question referred to CJEU was whether EU law Article 2(a) of the InfoSoc Directive prevents Member States from granting copyright protection to designs subject to requirements other than originality, e.g. the “aesthetic effect” required by Portuguese Copyright law.

The CJEU analysed the case by explaining the concept of “work” under EU law, ruling that such qualification requires the combination of two cumulative elements.

First of all, this notion implies that an original object is at hand, meaning it derives from an intellectual creation which can only be related to its author, reflecting its personality. Secondly, the qualification of “work” requires that the elements involved constitute the expression of such a creation: this means essentially that if the exercise of creative freedom is not remarkable in the creation of an object, being the creation only determined by technical constraints or rules, then the creation in question lacks the originality requirement (following Infopaq International, C-5/08)

In addition, the CJEU highlighted that the notion of “work” necessarily implies the existence of an object that can be identifiable with sufficient precision and objectivity, i.e. it must be fixed, also confirming the findings of its previous Levola Hengelo judgment, C-310/17.

The CJEU noted that the “aesthetic effect” that can be produced by a model is the result, among other things, of the subjective sensation of beauty felt by each person who looks at it. It recognized that this subjective effect in itself is not able to assess the existence of an identifiable object with sufficient precision and objectivity and, therefore, the “aesthetic effect” does not meet the requirements needed for the object to be considered as a “work” under EU law.

In light of the above, the CJEU finally ruled that Article 2(a) of the InfoSoc Directive must be interpreted as precluding national legislation from conferring copyright protection on models such as the clothing models involved in the case at stake, on the ground that they generate a visual effect of their own which is significant only from an aesthetic perspective. Moreover, it held that any national provision granting copyright protection to designs subject to requirements other than originality (e.g. Italian “artistic value“, or Portuguese “aesthetic effect“, as in the present case) is not compliant with EU law.

Looking at the Italian legal systems, this would suggest that also the requirement of “artistic value” provided by Article 2, No. 10 of the Italian Copyright Law in addition to originality for a design to access copyright protection in Italy does not comply with Article 2(a) of the InfoSoc Directive.

Nevertheless, it has to be kept in mind that EU directives do not impose direct obligations on individuals, since they do not have the so called horizontal effect. In light of this, the interpretation of a directive given in a preliminary ruling judgement of the CJEU is not enforceable in a dispute against private parties, but only in a dispute which involves at least one Member State as a party.

Therefore, through the Cofemel decision, the CJEU keeps moving forward towards the grant of a more easily accessible copyright protection, but the enactment of a new national law which removes the requirement of the “artistic value” to access copyright protection under Italian law is needed for Italy to finally be compliant with the InfoSoc Directive.

We expect the Italian legislator to take the stage and bring Italian copyright law back to fashion soon. Meanwhile, we believe Italian courts will follow the trend set by the CJEU by making it easier also for fashion items to benefit of this lower threshold for copyright protection.

If you would like to know more about copyright and fashion law in general, please contact and