Combination of common architectural elements does not make orangery original

It is always interesting to analyse how national courts apply the concept of originality depending on the nature of the work for which copyright protection is claimed. A recent decision issued by the Paris Court of Appeal concerning the alleged infringement of an ephemeral orangery is worthy of note.

A Kat sitting in an orangery

Facts

The facts of the case are relatively straightforward. In 2007, Va Evènements, a company specialising in event organisation, created a type of temporary structure named ‘Orangerie éphémère’. The company Mtech Events is also specialised in the creation and sale of orangeries. In August 2018, the company Orangerie Val de Loire contacted Va Evènements to install an ephemeral orangery in the Loiret region. However, the project did not come to fruition. 

Va Evènements found out that Mtech Events had manufactured and sold an orangery structure similar to its own. The company also discovered that Orangerie Val de Loire had bought the allegedly infringing orangery and reproduced photographs of the “Orangerie éphémère” on its website without any authorisation. On 14 October 2020, Va evènements sued the two companies before the Paris Tribunal judiciaire (TJ) for copyright infringement. By judgment of 13 September 2022, the court dismissed the plaintiff's claims. Va Evènements then appealed.

Analysis 

"Orangerie éphémère"Analysis

On the basis of a combined reading of Articles L.111-1, L.112-1 and L.112-2 7° of the CPI, the Court of Appeal confirmed that architectural works are protected by copyright provided that they are original [IPKat on originality here or here]. This comes to no surprise as the copyright protection of architectural works is explicitly mentioned by the CPI. The Court of Appeal also reaffirmed the principle that the burden of proof lies with the person claiming copyright protection. This comes as no surprise either as it is in line with well-established case law [IPKat on this point here and here]. These first two aspects thus do not require any further discussion [IPKat on architectural works].

In addition, the Court stated that ‘the concept of prior-art is irrelevant in copyright matters’. On this point, it should be remembered that this concept is specific to design law and not to copyright as the Court implied. However, in practice, such is not always the case particularly for works of applied art [IPKat on this point here]. This ambiguity can be seen here in relation to Baltard-type halls.

Once the series of reminders were completed, the Court of Appeal proceeded to analysing the elements underpinning the originality of the ‘Orangerie Ephémère’ structure. In this respect, upholding the decision of the TJ, the Court noted that ‘Va Evènements describes the characteristics of its “Orangeries éphémères” without however explaining any artistic choice or creative process, and even less how these choices reflect the personality of an author’. This is particularly true as “the descriptive elements claimed can be found in Baltard-type halls, and notably the 4-slope double roof, the steel structure and glass façades giving a large opening to the outside, with regular vertical lines and a rounded top, the framework with a lattice structure, inclined according to the slope of the roof, all elements which, taken together, belong to the common heritage of architecture’. 

Another point should be highlighted. The Court mentioned that ‘neither the inclination of the bars separating the trellises attached to the beam nor the presence of vertical bars, which are technical elements dictated by the construction rules, characterise aesthetic choices reflecting the personality of the designer’. This refusal of protection based on technical considerations echoes point 26 of the Opinion of Advocate General Szpunar in the Cofemel case, C-683/17. 

In the end, upholding the decision of the TJ, the Court of Appeal rejected the claim, Va Evènements failing at proving the originality of its orangery.

Thoughts 

This judgment is concise but offers an interesting insight into the interpretation of the concept of originality at the national level. Clearly, simply listing elements without further description is not enough to demonstrate the protectability of a work. This is even truer when most of these elements are driven by technical considerations.

Furthermore, it is evident that, in the context of copyright disputes, one of the primary challenges is the demonstration of originality. It is therefore recommended that a certain degree of caution be exercised in this regard. A lack of clarity or inconsistency in this area can have adverse consequences, as evidenced by this case. Oddly, it seems that the plaintiff varied the characteristics that it considered to confer originality on their work. This confusion was exacerbated by the fact that the different types of ‘Orangerie Ephémère’ did not all have the exact same characteristics.