The IPKat has received and is pleased to host this guest contribution from Katfriend Daan Breuking (holla legal & tax):
From photos to 3D replicas: can AI-generated copies infringe EU design rights?
by Daan BreukingOn 28 September 2026, AMD announced an agreement to acquire World Labs, the spatial AI company led by AI pioneer Fei-Fei Li, for approximately $8.2 billion. Earlier that month, World Labs introduced Atlas, an AI model capable of reconstructing three-dimensional environments from photographs and videos. Meanwhile, Meta's SAM 3D technology enables users to generate three-dimensional representations of objects from a single photograph.
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| AI-generated illustration of a cat transitioning into a 3D wireframe model (for illustrative purposes only). |
This raises a question that is becoming increasingly relevant for designers, developers and right holders: can an AI-generated digital replica of an existing product infringe EU design rights, even if no physical copy is ever made? As this article argues, the revised EU Design Regulation (“EUDR”) may provide a basis for treating virtual replicas as infringing products in their own right, even when no physical reproduction is intended.
From protecting AI output to protecting against AI output
In my previous contribution to the IPKat, I argued, drawing on the CJEU's judgments of Mio (C-580/23) and Konektra (C-795/23) (IPKat here) and Deity Shoes (C-323/24, IPKat here), that EU design law does not require human creativity in the same way as copyright. I illustrated the point with EU design registration 015064798-0001 for a plate featuring Lady Justice, generated entirely using AI without subsequent human modification. Registration does not establish substantive validity, but the example shows that a lack of human creative input does not, in itself, prevent registration.
Spatial AI raises the reverse question: if EU design law can protect what AI creates, can it also prevent AI from recreating an existing protected design?
The starting point is Article 11(1) EUDR: protection extends to designs that do not produce a different overall impression on the informed user. A faithful AI-generated replica may therefore fall within the scope of an earlier design. But that does not establish infringement by itself. The relevant act of use must also fall within the right holder's exclusive rights, subject to applicable limitations.
This article focuses on registered EU designs. Unlike registered designs, unregistered EU designs require copying under Article 20(4) EUDR.
Digital reproduction under the revised EUDR
The reform of EU design law, whose principal substantive amendments became applicable on 1 May 2025 and are now incorporated into the codified EUDR, expressly addresses digital reproduction. Recital 21 refers to the increasing use of 3D printing, including with AI assistance, and the difficulties of preventing unauthorised copying.
Article 20(2)(d) EUDR allows the holder of a registered EU design to prohibit creating, downloading, copying and sharing or distributing media or software recording the design for the purpose of enabling a product incorporating it to be made. A competitor who reconstructs a protected chair using AI and distributes a CAD file enabling others to manufacture replicas may therefore infringe without making a physical chair.
The purpose requirement matters. A file created for visualisation or technical analysis does not necessarily serve the same purpose as one intended to enable reproduction. An architect might reconstruct a chair for an interior visualisation; an engineer might model a vessel to simulate its behaviour in waves. Neither necessarily seeks to produce replicas.
Yet the creator's declared intention cannot be conclusive. A file's functionality, suitability for reproduction and circumstances of distribution may also matter. The provision does not specify a file format or require that manufacturing be possible without further processing. Nor is it necessarily limited to physical manufacturing: it refers to products covered by Article 20(2)(a) EUDR, which may include non-physical products.
Importantly, Article 20(2)(d) EUDR is not exhaustive. Article 20(2) EUDR lists examples of prohibited acts, while Article 20(1) EUDR confers a broader exclusive right of use. Digital replicas made for other purposes are therefore not automatically beyond design protection.
Can a virtual replica itself constitute an infringing product?
Article 4(2) EUDR defines a product as an industrial or handicraft item, other than a computer program, whether embodied in a physical object or materialising in a non-physical form. Article 20(2)(a) EUDR permits the right holder to prohibit making, offering, placing on the market or using a product incorporating or applying the protected design.
This broader definition is deliberate. Recital 9 EUDR expressly recognises designs that are not embodied in physical products, including designs visualised in graphic form. Although the recital does not directly address virtual reproductions of existing physical products, it confirms the legislature's intention to accommodate non-physical subject matter within EU design law. Read together with Articles 4(2) and 20(2)(a) EUDR, this supports a further argument: a virtual replica may itself qualify as a product incorporating a protected design.
Suppose a game developer uses AI to reconstruct an iconic chair and sells the resulting 3D object as a downloadable game asset. It has a distinct visual appearance and can be viewed and manipulated as a virtual object, although no physical chair is produced. In my view, there is a strong argument that the asset qualifies as a non-physical product under Article 4(2) EUDR. Making and exploiting it could therefore fall within Article 20(2)(a) EUDR, provided its appearance falls within the earlier design's scope of protection.
On this interpretation, it need not be shown that the file was intended to enable physical manufacturing. Nor does the exclusion of computer programs necessarily prevent protection: the program and the visual appearance of the virtual object are not the same thing.
Article 42(6) EUDR provides further support: the product indication in a design application does not affect the design's scope of protection. In Easy Sanitary Solutions/Group Nivelles (Joined Cases C-361/15 P and C-405/15 P, paragraphs 91–95), the CJEU confirmed that protection is not confined to the product category indicated in the registration. Although that judgment did not concern virtual products, its reasoning supports the view that registration for a physical chair does not, in itself, exclude enforcement against a virtual chair reproducing the protected appearance.
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| AI-generated illustration of a fictional design chair as a physical product, a 3D reproduction file and a virtual product. |
Where should the line be drawn?
There is an obvious difficulty. If a virtual chair can be an infringing non-physical product, why not a photograph, video or technical illustration depicting the same chair? Article 4(2) EUDR expressly includes graphic works within the definition of a product. It would therefore be difficult to claim that interactive 3D assets are products but ordinary 2D depictions categorically are not.
Commercial exploitation cannot resolve the distinction either. Both a virtual asset and a photograph can be sold, while commercial use is not a general condition of infringement under Article 20(2)(a) EUDR.
The better approach, in my view, is to examine the particular act of use and its legal basis, rather than draw a rigid line between virtual objects and digital depictions. Three questions matter.
First, what protected appearance has been reproduced? Article 19 EUDR identifies the protected features as those shown visibly in the registration application, while Article 11 EUDR requires an assessment of the overall impression on the informed user, taking account of the designer's freedom. A virtual environment does not alter that test. Rotating a 3D replica may reveal similarities or differences, but AI generation does not create a separate infringement standard.
Second, what act of use has occurred? Creating and distributing a file intended to enable a product to be made may fall under Article 20(2)(d) EUDR. Making or offering a virtual product incorporating the design may fall under Article 20(2)(a) EUDR. The provisions can overlap, but neither should be read as rendering the other redundant.
Third, does a limitation apply? Article 21 EUDR covers, among other things, private non-commercial acts, experimental use, citation or teaching, identification or reference to the right holder's product, and comment, critique or parody. Under Article 21(2) EUDR, the latter three categories are subject to additional conditions, including compatibility with fair trade practices and the absence of undue prejudice to the normal exploitation of the design. Citation or teaching also requires acknowledgement of the source. Recital 27 of the EUDR further emphasises the importance of freedom of expression. These limitations may therefore play an important role in determining whether a particular digital reproduction constitutes prohibited use.
A photograph identifying a chair in a product review thus raises different questions from a virtual replica sold as a standalone digital asset. The former may benefit from an applicable limitation; the latter presents a stronger case for prohibited product exploitation. That is not to say that every depiction is lawful or every virtual asset infringing. The boundary remains contextual, and the courts have yet to clarify it.
Copyright and design law compared
Copyright may offer additional protection, but the infringement tests differ. As the CJEU clarified in Mio/Konektra (paragraphs 86–87 and 92), copyright infringement requires the recognisable reproduction of elements expressing the author's own intellectual creation. Overall visual similarity alone is insufficient. Under design law, by contrast, the decisive question is whether the allegedly infringing design produces a different overall impression on the informed user.
An AI-generated replica may consequently fall within a registered design's scope even if copyright infringement cannot be established. Conversely, using AI does not prevent copyright infringement where protected original elements have been recognisably reproduced.
Design protection has limits of its own. Features solely dictated by technical function are excluded under Article 9(1) EUDR (DOCERAM, C-395/16, paragraphs 31–32), and Article 21(1)(b) EUDR provides a limitation for experimental acts. These may matter when AI reconstructs technically complex products for engineering or research, but neither establishes a general exemption for technical analysis.
Conclusion
Spatial AI increasingly makes it possible to reconstruct existing products without obtaining their original design files. While Article 20(2)(d) EUDR expressly addresses certain digital reproduction files, the significance of the revised legislation may extend further. In my view, Article 4(2) EUDR, read together with Article 20(2)(a) EUDR, provides a credible basis for treating virtual replicas as infringing products in their own right, even where no physical reproduction is intended.
That does not mean that every digital depiction of a protected design constitutes infringement. The decisive question should not be whether a reproduction exists in physical or digital form, but whether the protected appearance has been used in a manner falling within the exclusive rights, taking account of their scope and statutory limitations. A virtual replica should therefore neither escape scrutiny merely because it is intangible, nor automatically infringe simply because it resembles an existing product.
In my previous contribution, I argued that EU design law could protect what AI creates. Spatial AI now reveals the other side of that proposition: EU design law may not only protect what AI creates, but also determine what AI is allowed to recreate.
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I do not really understand the issue addressed by the post. Is there really a meaningful difference between a digital copy and a physical embodiment of the same design? As Italo Calvino already wrote in his Le Città Invisibili (1971): "The eye does not see things, but images of things that mean other things."
ReplyDeleteThanks for your comment, Tjeerd! I agree that the distinction between physical and digital reproductions is not, in itself, decisive.
ReplyDeleteThe question I wanted to explore is how the revised EUDR applies when a protected design is recreated and exploited solely as a virtual 3D asset. Article 20(2)(d) expressly addresses files intended to enable a product to be made, but is not necessarily limited to physical products. Separately, Article 4(2) expressly recognises non-physical products, raising the question whether making or offering a virtual replica may itself fall within Article 20(2)(a), even where no physical reproduction is intended.
This leads to a further question: if a virtual replica can infringe, why not a photograph or another digital depiction? In my view, the answer lies not in a rigid distinction between physical and digital reproductions, but in the scope of protection, the particular act of use and the applicable limitations under Article 21.
Interesting piece. One practical consequence: if virtual replicas can infringe, many of these disputes will be about unregistered EU designs, and those come down to evidence. The right lasts three years from first disclosure in the EU and only protects against copying, so the holder has to show what was disclosed, when and in what form, and the other side will often argue independent creation. With spatial AI rebuilding products from photos, "who had it first" looks likely to come up more often, not less.
ReplyDeleteThe same evidence problem applies to the 12-month grace period before filing a registered design: the designer's own earlier disclosure is only harmless if its date can be shown.
So designers should keep dated records of their files and first disclosures (product photos, CAD exports, launch material) rather than relying on file metadata, which is easy to dispute.
(Disclosure: I work on TimeBinder, a file-timestamping service.)