Can utilitarian objects be copyrighted?

Copyright is an important means of protecting creative works. But when is a work actually original and creative enough to receive copyright protection? And what about utilitarian objects, where functionality and technology often play a major role? I tell you this based on a recent court case about cheese slicers.

What is required for a copyright?

A copyright requires that the work be original. This means that the work must be the creator’s own intellectual creation. Thus, it must not have been borrowed from pre-existing works. Also, the work must be a result of creative choices that reflect the personal character – the vision – of the creator. This means that works or parts of works that are so banal or trivial do not qualify for copyright protection. An example is a recipe. In fact, recipes often contain only a list of ingredients and a step-by-step plan. No creative choices are often made in preparing them.

By the way, recipes can be considered trade secrets/know-how in some cases. You can read more about this in one of my earlier articles.

Then in copyright law we also have the so-called “technique exception”. Is the choice of a particular design based on technical considerations? Then this design is not eligible for copyright protection. There is then no longer a question of a creative choice. An example of this is the spiral of a corkscrew. Want to know more about the technique exception in copyright law? Then read the article by my colleague Bert Gravendeel.

Do utilitarian objects reach the threshold of copyright?

In general, the threshold for copyright in the Netherlands is low. That is, judges quickly rule that a work is sufficiently creative and original. With utilitarian objects, this is somewhat different. Besides the fact that the design of utilitarian objects is often motivated (in part) by technical considerations, the design is often also based on functional/ergonomic considerations. Although functional/ergonomic aspects are not by definition excluded from copyright protection, creativity must be clearly present in them and the design may not simply result from the function of the product. Practice shows that in these cases, that creativity is often difficult to demonstrate.

An example: BOSKA cheese slicers

A recent lawsuit that illustrates this well is a case about cheese slicers. BOSKA, manufacturer of cheese slicers and cheese graters, among other products, argues that its products are copyrighted and that the products its competitor, Klaverland, infringes on them.

BOSKA relies in the case on the “look and feel” of its products and lists, for example, for its cheese slicer, 16 elements that, in its view, are not technically determined and demonstrate creative choices. BOSKA believes that the combination of all these elements makes the cheese slicer original and creative and thus copyrightable. Some examples of the elements BOSKA cites are:

1. the hollow handle;
2. the “round” design of the handle;
3. the flattening at the top and bottom of the handle;
4. the tapering of the handle toward the bottom of the handle, as well as toward the blade;

The judge disagreed with BOSKA, ruling that the elements she listed stemmed primarily from functionality and ergonomic considerations. In doing so, according to the judge, BOSKA did not clearly indicate what protectable creativity it applied to create a copyrighted work with the combination of the elements it listed. Nor has BOSKA clearly indicated in what way the combination of the elements expresses BOSKA’s personal vision. Thus, BOSKA’s products are not copyrighted.

Tips on copyright and utilitarian objects

That the threshold for copyright on utilitarian objects is high does not mean that their protection is not possible. A utilitarian object may enjoy (partial) copyright protection if it contains aesthetic elements separate from the functional aspects. For example, the decoration on a corkscrew may be protected, but not its technical functioning, the spiral.

An important lesson from the BOSKA case is that clear and detailed substantiation is needed to show where the creative and free choices were made in the design. Here it helps to record the design process as clearly as possible. In it, try to show as much as possible your personal vision and thus why you chose a particular design.

Questions?

Do you have any questions following this article? Or other questions about copyright or intellectual property? Then contact one of our lawyers by mail, telephone or fill in the contact form for a free initial consultation. We will be happy to think along with you.