Assessing the Strength of a Work through Utilitarian Objects : Insights from Painer, Cofemel, Brompton Bicycle, and Mio on the Scope of Copyright Protection

By Branka Marušić[*]Associate senior lecturer in intellectual property law at Stockholm University.

1. Exegi monumentum aere perennius – Jonas Nordell

Portrait photograph, a pair of jeans, a folding bicycle and a dining room table. These are the factual objects that are in the limelight of cases[1]Judgment in Painer, C-145/10, EU:C:2011:798; Judgment in Cofemel, C-683/17, EU:C:2019:721; Judgment in Brompton Bicycle, C-833/18, EU:C:2020:461; Judgement in Mio and Others, C-580/23 and C-795/23, EU:C:2025:941. decided by the Court of Justice of the European Union (CJEU) on whether these objects fulfil the originality criterion or, in other words, if the presence of the originality criterion is ‘strong enough’ for these objects to be deemed to be artistic and literary works. Jonas was not an overly huge fan of either of these objects. Being an artist himself, he would fill his space with various paintings – a lush green imaginary hanging on his office walls, and small, cleverly crafted snails marked the property of his books – yet photographs remained scarce. He was not a fan of jeans either, choosing to dress sharply. Although an ardent bicycle rider – towards the end of my doctoral years, I lived on the street that was part of his daily commute, so I was able to witness his enthusiasm. His bike was sturdy, in good shape, and non-foldable. He did like furniture, though! I cannot say if a dining room table was one of his favourites, but he did craft his own office chair. From this office chair, he generously shared his time and wisdom with everyone that was sitting opposite him – particularly this lost (and often confused) former doctoral student.

The intensity of the criterion of originality – most particularly its strength rather than its weakness, is a theme that Jonas liked to return to often. He peppered his doctoral thesis with the question of shades and grades of strength of a work.[2]Per Jonas Nordell, ‘Rätten till det visuella’ (LLD theses Stockholm Universitet 1997) 35–194. He wrote a piece on the strength of work in the Festskrift to his academic father,[3]See discussion in Per Jonas Nordell, ‘Vad är en stark upphovsrätt’ in Lars Gorton, Johnny Herre, Erik Nerep, Per Jonas Nordell, Jan Rosén (eds), Festskrift till Gunnar Karnell (Jure AB 1999) 513. and it was also the content of his question at the meeting of the Swedish Copyright Society in March of 2025 (that sadly proved to be his last one). I am beyond naïve to say with confidence that this question could ever be answered. However, in the following pages I would like to unpack the European Union (EU) law vision board dedicated to defining a copyright protected work – and the EU’s inherited intensity of originality. The following pages will first examine the concept of originality as understood at the international, EU, and national levels, before turning to the specific question of originality in relation to utilitarian objects on the EU level.