creation does not constitute an unauthorized reproduction of original elements of another’s work, there is no copyright infringement, irrespective of whether the overall (visual) impression is different (see paras. 64 and 65). In the opinion of the AG, the Court must distinguish what may fall within design protection and what may fall within copyright protection because the protections have different requirements and different purposes, thus avoiding confusion between the two protection regimes (para. 66). The CJ emphasized that the subject matter of copyright must be expressed in a way that makes it identifiable with “sufficient precision and objectivity” (paras. 33 and 34, with reference to C-310/17 Levola Hengelo, para. 40). The Court held that the ‘aesthetic’ appearance of an object is necessarily subjective. Moreover, the presence of an ‘aesthetically significant visual effect’ of a design cannot justify the protection of such design as work, under copyright (para. 50).59 In Cofemel, both the CJ and the AG send mixed signals between the words being used and the standards that the Court wants to apply.60 The AG, quoting the description of the special features of the clothing of G-Star, includes them in the field of unprotectable ideas. We think that the AG seems to confuses such description, which may convey an idea with several options for its expression, with the actual clothing of G-Star, which presents a specific and identifiable manifestation of such ideas.61 The reference made by the AG to functionality could be understood as establishing a rule that the closer an item corresponds in its appearance to the gender (jeans, t-shirts, sweatshirts), the less it appears to rely on creative choices. But if this reasoning is followed in relation to works of applied art or designs, more will be required to demonstrate that there is a personal creation, re-establishing different standards in relation to other categories of works.62 The creative choices do not concern the motive, which may be “prototypical” (like in 59 LEISTNER stresses that the CJ’s emphasis on the requirement that subject matter of copyright “be expressed in a manner which makes it sufficient precision and objectivity” seems to conflate the criteria for concretizing the object of protection with sufficient certainty and the criteria for assessing originality of a work. This author assumes that the CJ was concerned that if the aesthetic appearance ought to be considered relevant, practically every design would qualify for copyright protection. See LEISTNER, op. cit., p. 1117. ENDRICHLAIMBÖCK, cit., p. 266, contends that the CJ rejection of the “aesthetical significant visual effect” is motivated by the consideration that the assessment ought to be focused on the creative process itself and not on its result. According to the CJ, requirements that relate to the characteristics of the subject matter that do not necessarily reflect the required characteristics of the process of creation cannot be part of the originality criterion or be an alternative to such criterion. 60 In this sense, KUR, op. cit., p. 7, with whom we totally agree. 61 KUR, op. cit., p.7. 62 See, for photographs, C-161/17 Land Nordhein-Westfalen v. Dirk Renckhoff, EU:C:2018:634. 242 MARIA VICTÓRIA ROCHA
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