From Function to Form: Applied Art in the UK and EU

This duality found within applied art has created a challenge for legal systems. How do you protect the originality of an aesthetically beautiful object when it also functions as a vase, a piece of jewellery, or a racing car?

What is applied art?

Applied art refers to artistic creations with a utilitarian function. They  exist between the realms of pure works of art (paintings, sculptures, literary works, or other purely aesthetic works) and functional objects. They include both works deliberately created as art that also have useful functions (like a decorative ornate chair), and functional objects that have been given an artistic flair (like well-designed household items).

Examples of applied art include intricately carved wooden furniture, designer handbags and couture clothing, decorative ceramics and pottery, stained glass windows, ornate jewellery, custom lighting fixtures, and even consumer products like smartphones or cars where the aesthetic design plays a significant role alongside functionality.

Legal Protection for Applied Art

In the UK, applied art attracts both copyright and protection as a design. These are distinct systems of protection with different criteria—copyright protection requires a creator's intellectual creation, while design protection requires novelty and individual character. However, the relationship between UK and EU approaches to applied art copyright protection has become increasingly complex following Brexit, with UK courts now acknowledging that the two systems may be fundamentally irreconcilable.

Copyright

The primary legislation governing copyright in the UK is the Copyright, Designs and Patents Act 1988 ("CDPA"), which protects both applied art and regular art. Applied art is protected as "works of artistic craftsmanship", while fine art is protected as "artistic works".

Both applied art and fine art can receive copyright protection under CDPA s.4 if they meet the originality threshold. Protection is automatic upon creation, and the term of protection is the life of the author plus 70 years. In theory, the same originality standard applies to both applied art and fine art—the art must be the author's own intellectual creation and reflect the author's personality through free and creative choices.

However, in practice, courts may scrutinise applied art more closely than regular art, to attempt to separate the creative elements from functional aspects. Fine art typically carries a presumption that creative choices were made, whereas for applied art, there must be evidence that: (1) creative choices are perceptible in the work itself; and (2) the work has identifiable elements that go beyond purely functional aspects.

The UK-EU Divergence Problem

A significant development occurred in November 2024 when the Intellectual Property Enterprise Court (IPEC) in WaterRower v Liking [2024] EWHC 2806 found that EU and UK copyright tests for applied art cannot be reconciled. The court ruled that a rowing machine qualified for copyright protection under EU law but not under UK law, stating that attempting to harmonise the approaches would render the wording of the CDPA "meaningless".

This case highlighted a fundamental difference between the two regimes: EU law takes an open approach where any work reflecting the author's personality through free and creative choices can receive copyright protection regardless of aesthetic effect. UK law, on the other hand, maintains a 'closed list' system requiring works to fit specific categories, with applied art needing to qualify as "works of artistic craftsmanship" (a concept not defined by legislation, though in Bonz Group v Cooke [1994] 3 NZLR 216, a New Zealand case that UK courts have relied upon, the court said that the creator must be "both a craftsman and an artist" for artistic craftsmanship to apply).

The court established a two-stage test for applied art copyright in the UK:

1. Does the work pass the EU originality test (reflecting the author's personality through free and creative choices)?
2. If so, does it qualify as artistic craftsmanship under UK law, requiring both craftsmanship and artistic quality?

This stricter UK approach means that commercially focused design intentions might weigh against copyright protection, as they suggest that the designer's primary goal was commercial rather than artistic expression.

This should sound a note of caution amongst businesses that heavily rely upon the aesthetic of their products, to take steps to ensure their creations are protected appropriately.

Design Right

Applied art can also be protected through design rights, which are governed by multiple legal frameworks in the UK. These frameworks offer different protection than those typically used for regular artistic works.

EU

Applied art in the EU benefits from a dual system under the European Union Design Regulation (EUDR) (formerly the Community Design Regulation). Reforms to EU design law came into effect on 1 May 2025. Registered EU Designs (REUDs) (formerly Registered Community Designs) offer protection for applied art for up to 25 years when registered with the EU Intellectual Property Office (EUIPO), requiring novelty and individual character. Alternatively, Unregistered EU Designs (UEUDs) provide automatic three-year protection from first disclosure in the EU, protecting against copying but requiring the same substantive criteria as REUDs.

Both frameworks protect the appearance of products like shape, texture, materials and ornamentation, though features that are designed solely with technical functions in mind are excluded.

The recent update should be of interest to digital creators, because the definition of "design" has been broadened to include animations, movements, transitions and other dynamic features, while "product" now explicitly encompasses digital creations, graphical user interfaces, spatial arrangements for virtual environments, and non-physical items, alongside traditional physical products.

UK

The UK has similar protection available as established under the EU legal framework described above. The Registered Designs Act 1949 established UK Registered Designs protection for applied art, which requires novelty, individual character and registration with the UK Intellectual Property Office (UKIPO). This gives applied art up to 25 years of exclusive rights against any similar design. Registration protects an applied art design's complete appearance (including shape, decoration, and surface elements).

The CDPA created the UK's Unregistered Design Right (UDR), which protects original, non-commonplace designs automatically. UDR covers 3D aspects for either 15 years from creation or 10 years from first marketing, whichever ends first. Unlike registered designs above, UDR only protects against copying and excludes 'must-fit' features (parts designed to connect with another product, like a plug fitting into a socket), 'must-match' features (parts that must look a certain way to match the appearance of the overall product, like a car door) and surface decoration.

Recent Developments in Applied Art Protection

The AG's opinion that was delivered on 8 May 2025 on joined cases C-580/23 and C-795/23 has provided significant clarification for EU copyright and design protection of applied art.

The opinion firmly rejects that stricter requirements must be applied to applied art compared to fine art. This confirms that applied art must be evaluated using the same originality criteria as artistic works throughout the EU.

The AG also offered precise guidance on assessing originality in applied art. While confirming that works must reflect the author's personality through free and creative choices, the opinion emphasises that these creative choices must be objectively perceptible in the work itself. This shifts the focus away from subjective creator testimony towards an objective analysis of the finished product.

The opinion also clarifies that not all non-technical design choices qualify as "creative". Simply having freedom from functional constraints does not automatically mean that those choices are creative; instead, they must genuinely reflect the author's personality to warrant copyright protection.

For infringement assessments, the AG distinguished copyright infringement (requiring a recognisable reproduction of creative elements) from design law's 'overall impression' test. This distinction will help to maintain proper separation between these protection regimes and prevent copyright from expanding into design law's domain.

Conclusion

Applied art exists at the intersection of creativity and functionality, with EU and UK law taking increasingly divergent approaches since Brexit.

As artificial intelligence generates designs, and 3D printers can reproduce them instantly, a fundamental question emerges: how will legal frameworks evolve to protect the irreplaceable human creativity that can make a functional object a work of art?