original work, but in the field of designs, the aesthetic element is always present because what is protected is the form or ornament of a product when it is novel and has individual character. The “plus” of creativity that allows affirmation that a design is also a work lies in the identification of aesthetic-artistic elements in the object, especially when the type of work (work of applied art) constitutes a sub-type of an artistic work (that has an intrinsic artistic character).64 After Cofemel, national provisions expressly differentiating between the relevant work categories must be considered as infringing EU law as interpreted by the CJEU. Nevertheless, the standards applied are a matter of court practice, and national courts may simply adapt to the CJEU language regime while heeding the subtext implied in Cofemel that protection for works of applied art should not be granted too easily. This means, in practice, that national courts may continue to interpret the cumulation of protections in different ways. The Cofemel ruling did not lead to harmonization in this area. The restrictive interpretation the CJ offers of what should be considered original work seems to lead to a dead end. The ruling of the CJ was that article 2(a) of the InfoSoc Directive must be interpreted as precluding national legislation from conferring protection, under copyright, to designs such as the clothing designs at issue in the main proceedings, on the ground that, over and above their practical purpose, they 64 For more detail, in this sense see CARBAJO CASCÓN, “La protección de los diseños de moda en la Unión Europea”, cit., pp. 153–56. Basically, it seems that the CJ advocates a solution like that established by US case law: a design can only access copyright protection if the object in which it is applied presents aesthetic elements that allow us to identify it as a work of art separable from the practical use of the industrial object. The huge difference is that in the US the industrial object and its elements are protected separately (the US “useful doctrine”), while in the EU the protection can be cumulative. If the object presents artistic elements, it will be able to enjoy both, the protection granted by design law and that offered by copyright (which will remain once the design protection has expired). Where artistic features are incorporated into a functional product (e.g., garment, design table, food plating) these features are still eligible for protection subject to various conditions. In several jurisdictions, including the US, such artistic features are protected if they are separable from the underlying product. This doctrine is based on the idea that for a creative work which also as a utilitarian function to attract copyright, it must be conceptually separable from the product in which it is incorporated. The food as presented on a plate is “useful” in the sense that it provides nutritional value to who consumes it. The relevant issue here is to know whether the dish stimulates in the mind of the consumer a concept separate from its nutritional value. According to BONADIO, WEISSENBERG (op. cit., p.8), as consumers of fine dining (or even not so fine cuisine) know, the experience of enjoying a dish may go well beyond simply obtaining its nutritional value. The growing of haute cuisine world, as well as the success of culinary television shows, and the pervasive social media “foodie” culture, testimony the consumers’ desire for beautifully presented culinary creations and the increasing emphasis placed on the plating of the food than the food itself. Thus, it may be argued that even in countries like the US most dishes and their visual appearance may also be determined by creative expressions independent of their functional influences and therefore possibly attract copyright. In Star Athletica v. Varsity Brands (580 U.S.2017), the Supreme Court held that the pictorial and graphic features of cheerleaders’ uniforms could be applied to other medium and could be protected by copyright. Considering this decision, culinary presentations that contain artistic qualities independent of any functionality might now receive copyright protection (in this sense, see also SMITH, op. cit., p. 142). 244 MARIA VICTÓRIA ROCHA
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