On 13 November 2013, the German Federal Supreme Court of Justice redefined a decade-long principle of German copyright law greatly improving copyright protection for applied or commercial art. Traditionally, works of applied art (i.e. designs of everyday things) had to pass a higher threshold of originality in order to be protected under copyright law. Only the so-called “small change” (“kleine Münze”) protection was applicable for commercial art, i.e. works of practical use and commonplace appearance with little individuality, such as telephone directories, recipe books, catalogues, reproduction of artworks, and compilations in general, and for these “small change” works the creative requirements for obtaining copyright protection were reduced. While up to now only so-called “purposeless art” (i.e. “proper” museum style art) had to fulfill lower requirements in order to obtain copyright protection, this benchmark now also applies for applied or commercial art according to the decision of the Federal Court of Justice.
In the landmark “Birthday Train” case, the Federal Court of Justice, Germany’s highest court, held that copyright protection may extend to the design of a toy train made of wood on which candles and letters could be mounted to celebrate a birthday. The court had always previously justified its narrow application of copyright jurisprudence on the basis that protection of registered designs could be obtained for the applied arts. For the recognition of copyright protection, however, even further superior design features were required. The Federal Court of Justice has now abandoned this jurisprudence. Through the reform of industrial property rights in 2004, an independent industrial property right had been created through the registered design and the close link to copyright law had been eliminated.
The Federal Court of Justice also states that the protection as a registered design no longer requires a certain level of originality but individual character in the design differing it from the existing design corpus. Protection as a registered design and copyright protection are not mutually exclusive but can exist in parallel. Just because a work is able to obtain protection as a registered design does not mean that it falls out of the scope of protection of copyright law at the same time. No other additional requirements are therefore to be placed on the copyright protection of works of the applied arts than on the copyright protection of works of purposeless visual arts, literature or music.
The decision will have implications for all areas of creative achievements, however, especially for the advertising industry, whose graphic designs are now possibly subject to different criteria, as well as for, example, designer furniture or playground equipment. While the advertising industry often had to resort to competition law in the past, copyright law may now also provide protection against imitation in certain cases. Equally, designers may be able to rely on the fair compensation provisions of the copyright law which will have tremendous implications for the design industry. Whether the “birthday train” is, in fact, entitled to copyright protection will be the subject of further analysis by a lower court.
