That said, the Appeal Court ruled that even if both requirements referred to were met, the design of the horse used in the distinctive signs of the appellant did not fulfil the degree of originality demanded by Article 2º CDADC. This question was not addressed in either the Cofemel CJ ruling or in the Cofemel STJ decision. The Court of Appeal deepened the concept of artistic creation and held that to determine the degree of originality demanded by the CDADC the work of art must be created by an artist and is only artistic if society recognizes it as such.77 In assessing whether a work is artistic from the perspective of its surroundings, the Court should not consider its conception of art because such a criterion would be controversial and arbitrary. Factors such as the opinion of experts, artists in the same field, or art dealers, as well as publications in art books, its presence in museum collections, or expertise, are decisive.78 In this case, in the absence of allegation and proof of these elements, the Court could not find that the degree of originality required by article 2(1)(i) CDADC existed. As before, the Court followed the institutional approach. In Secto 4200 lamps,79 (created by a very well-known architect, Seppo Koho, in cooperation with the plaintiff), Case of 05.02.2024, the Court of Appeal of Lisbon recognized copyright protection if the intellectual creation is the expression of free and creative choices, if there is autonomy before technical, or external restraints and if the work reflects the personality of the author (being the author’s own intellectual creation). The evaluation should be done by the judge, regardless of the judge’s personal taste and regardless of institutional recognition. The Court ruled that Secto lamps deserved copyright protection. The Court followed the rulings of the CJEU, namely the Cofemel Case. The Court stated that originality is a legal concept, thus it is up to the Court to rule if a certain subject matter has originality or not. Personal tastes or conceptions of the judges are irrelevant. The institutional recognition by the specialized circles may exist or not, though such recognition may be a strong indicator that we are before a protected work. But even if there is no institutional recognition we may be before work. Art history shows that major art movements weren’t immediately recognized by the establishment (see what happened with impressionists and the French droit de suite) The only criteria to determine if a work is original is to assess if the subject matter is the author’s own intellectual creation. To 77 See para. 106 of the decision, quoting SILVA, P. SOUSA e, Direito Industrial, Noções Fundamentais, cit., p. 191. 78 See paras. 107–10 of the decision. 79 Proc. 253/21.0YHLSB.L1-PICRS (Rel. Alexandre Au-Yong Oliveira). 249 HOW TO PROTECT FOOD PRESENTATION BY INTELLECTUAL PROPERTY
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