The question of conflict or overlap between copyright law and design law has never been the subject of legislation in Germany. Rather, the courts, and especially the German Federal Supreme Court, have established that substantive requirements in the sense of degree of originality or degree of aesthetic content for establishing copyright protection for works of applied art must be the more stringent than those for works of fine art provided that such a work of applied art was susceptible to design protection.

This clear distinction was justified by the assumption that the subject matter of protection under design law was in principle the same as that protected by copyright, and both laws would differ only gradually in the required level of artistic creation. As designs protected under design law had to be novel and had to show a certain level of originality, copyright law should require a higher degree of creativity or originality (in the sense of “significantly surmounting the originality of the average design”) in order to allow an industrial design – a work of applied art – to be protected under copyright law.

In the case “Birthday Train”, the Federal Supreme Court was addressed to decide whether the designer and author of the “Birthday Train” created in 1998 and shown below could claim rights under German copyright law.

This was important because the designer was interested (in light of significant sales of the products) in receiving further compensation from the employer and manufacturer. Such claims are available under German copyright law but not under German or European design law. Upon the designer’s appeal, the Supreme Court annulled the decision of the Schleswig Appeal Court and held that the designer’s work of applied art was, in principle, susceptible to protection under German copyright law. The Court, firstly, found that the new German design law of 2004 (following the standards of the Designs Directive) established an independent IP right and removed any existing close relation to copyright law; protection under design law would not be equal to copyright protection anymore. Secondly, design law would not require a specific degree of creativity or originality but the focus was on similarity or dissimilarity. Thirdly, since design and copyright protection would not conflict but co-exist, including different requirements for establishing protection and different legal effects, industrial design could be protected by both laws without requiring higher standards under copyright law than in case of works of fine art, music or literature.

As a result, the German Supreme Court concluded that for the protection of works of applied art under copyright law “a degree of creativity which allows, from the view of a public open to art and sufficiently skilled in ideas of art, to be called an ‘artistic’ performance” would be required, which is the traditional standard for works of fine art and literature. Consequently, differences in standards for protecting works of applied and non-applied art do not exist anymore under German copyright law.

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This “internal” alignment of copyright law, covering all kinds of works under the same standard, is a truly “national” solution, not required under European design law or under current harmonization of copyright law. Rather, designers and right holders will profit from an explicit co-existence of parallel schemes of protection. Differences between both laws will, of course, continue to exist: While works of applied and non-applied art require an “artistic” performance to claim protection under German copyright law, protecting such works under German or European design law requires “novelty” and “individual character”.

It seems to follow from these conditions that a design may be protected under both copyright and design law (provided it shows sufficient creativity, novelty and individual character) but may not necessarily be infringed by the same object, under both laws. This appears to be true since, in assessing the scope of protection of a design, the degree of freedom of the designer in developing his design must be taken into consideration (Article 10 [2] CDR). This scope can be broad, average or narrow, depending on the existing design corpus and the departure or “distance” of the design from the specific prior art. Contrary to that, according to the Federal Supreme Court in “Birthday Train”, a “personal intellectual creation” requires freedom which the author uses for “expressing his creativity in an original manner”. In case of articles of daily use, showing features of appearance dictated by the intended use, such “freedom for an artistic design”, as a rule, would be limited. Consequently, it seems that copyright protection for works of applied art will continue to be more difficult to be enforced in comparison with parallel design rights.