Copyright Law | Artwork & Design | Business Litigation
Setting the Stage: Copyright vs. Design Protection
Germany’s Federal Court of Justice (BGH) clarified on February 20, 2025 that Birkenstock’s iconic sandals—such as the Arizona and Madrid—do not qualify as “works of applied art” under § 2 UrhG and thus are not eligible for copyright protection (copyrightblog.kluweriplaw.com).
Under German and EU law, works must be original—an author’s own intellectual creation reflecting free, creative choices (copyrightblog.kluweriplaw.com). While “applied art” (functional design) no longer requires a higher originality bar than fine art, the creative freedom must be exercised artistically, beyond mere technical or ergonomic considerations (copyrightblog.kluweriplaw.com).
The BGH’s Examination of Creative Latitude
Key Legal Criteria
- Free and Creative Choices: Design elements must originate from the creator’s creative spark, not technical necessity (copyrightblog.kluweriplaw.com).
- Artistic Expression vs. Craftsmanship: Decorative features and materials alone don’t meet the standard; design must reveal an individual artistic imprint recognizable by an art-literate audience (copyrightblog.kluweriplaw.com).
In Birkenstock’s case, although the sole, straps, and materials offered some design choice, they were fundamentally dictated by function, such as foot support and comfort—thus, their usage remained within craftsmanship, not artistry (pinsentmasons.com).
The Birkenstock Ruling: Practicality Trumps Aesthetics
- Court Findings: The BGH confirmed that Birkenstock sandals are functional objects, not works of art—so copyright does not apply (reuters.com).
- Artistic Merit vs. Technical Constraint: Aesthetic recognition (e.g., museum exhibits, design awards) is insufficient absent underlying creative originality (flib.nl).
- Business Impact: With standard design protection expired (25 years), Birkenstock cannot extend rights via copyright—forcing reliance on design registration, trademark, trade dress, or litigation in other jurisdictions (boehmert.de).
Business & Litigation Takeaways for Practitioners
| Legal Principle | Implication |
|---|---|
| Originality is non-negotiable | Design must embody personal creative freedom—not dictated by function. |
| Aesthetics ≠ Art | Artistic recognition alone doesn’t evidence the required creative origin. |
| Alternative IP Pathways | Use design protection, trademark, or trade dress where copyright fails. |
| Evidence is critical | Demonstrate creative choices through drafts, expert testimony, museum curation. |
Broader Context & EU Considerations
The BGH builds on EU jurisprudence (Infopaq, Cofemel, Brompton), applying uniform originality standards to all works—including designs—but recognizes that functional constraints naturally limit creative freedom (dreyfus.fr, copyrightblog.kluweriplaw.com, en.wikipedia.org).
Upcoming cases (USM-Haller, Mio AB) pending at the CJEU may clarify:
- Whether an author’s intent and creative purpose matter;
- If post-creation acclaim (e.g., awards) affects originality; and
- Whether ‘applied art’ warrants a distinct originality test (copyrightblog.kluweriplaw.com).
Conclusion: Clearly Demonstrable Artistry
Germany’s highest court underscores a critical message: Form follows function—not artistry—when technical needs dominate design choices. For legal counsel advising clients in sectors where aesthetic and utility intersect, the Birkenstock judgment serves as a powerful reminder—copyright paths are narrow, and creative freedom must be clearly demonstrable.
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