06 February 2019

Which artworks are protected in the European Union by copyright? Due to the constant development of technology and art the answer shall be reconsidered from time-to time. In our article we address this question on the basis of the landmark judgments of the European Court of Justice delivered in the field of copyright.

The qualification criteria

If you are about to exercise your rights as an author within the EU, you must take into account both EU and national law.

The EU regulates the field of copyright at the level of directives, meaning that Member States can adapt their legislation in accordance with the directives. As a result, specific rules may vary between different Member States. As the interpretation of EU law is carried out by the Court of Justice of the European Union, the Luxembourg forum creates a unified EU practice through its decisions.

The form of the artwork

Regarding the term “work” under copyright law, both EU and Hungarian law relies on the definition of the Berne Union Convention, according to which, the expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever the mode or form of its expression may be.

The protection is therefore not limited to certain forms (eg painting, musical work), leaving room for novel or unusual forms of expression.

Originality test

An artwork may only be eligible for copyright protection within the EU if

- the work is a result of its author’s intellectual activity, and

- the expression of the work is original and individual

It is important that copyright protects the expression of the intellectual activity. Therefore, the protection does not extend to unfinished, unrealized ideas, methods and concepts.

The original, individual character according to the unified European practice means that the author has creative freedom, they can make free decisions during the creative process that give the work individual, original character.

If the creation of the intellectual product is governed by rules or subject to functionality, usually we cannot talk about artistic work (eg a contract written by a lawyer).

On the contrary, you are wrong if you assume that the "work" has to meet any aesthetic or quality criteria for the copyright protection. It may also give unique character to a work if you recognize it because its taste is rather questionable.

“Based on a true story”

Here are some exciting cases from the relevant EU practice. Based on the above, you can guess the decisions, of course, the answers will be revealed.

Portrait photo

In the Painer case, the European Court decided on whether a portrait photo of a young girl can be eligible for copyright protection. The Court found that even in the case of a portrait photo, the creator may have creative freedom, such as choosing the angle of view, lights, background, so that even the seemingly generic portrait photos can be copyrighted. The judicial practice generally uses a low threshold for the originality of photos.

Taste of a cheese

The EU Court has also ruled in a dispute over a cheese product, which we have described in our previous article (read here). The Court confirmed the existing practice, that the form of appearance should not be a ground for exclusion from copyright. The CJEU finally came to the decision that the expression of the work raises problems as the tastes are experienced in different ways depending on the taster, thus it is impossible to objectively describe the flavor to be protected. According to the judgment, the taste of a food cannot constitute an artistic work.

Premiere League football match

The European Court of Justice has ruled in the Football Association case that Premier League football matches cannot be classified as works under copyright. They emphasized that football is governed by certain rules, which does not allow creative margin which is necessary for the match to qualify as a work.

Perfume fragrance

In a Dutch lawsuit, the Supreme Court ruled that a fragrance from Lancôme named “Trésor” is eligible for copyright protection. In a similar case is France, the Court of Cassation categorically ruled out that one of Dior's fragrances could be copyrighted. After the judgment in the “cheese case” it is unlikely that EU copyright would cover fragrances.


Now you can see that copyright protect not only musicians. In most areas of the creative industry, you may be eligible to claim copyright if your work is misused. For the above, we recommend that you contact a legal expert who will help you make the right decision.