The German Federal Court of Justice has, in a recent ruling, fundamentally changed the way works of applied art are protected. Whereas formerly copyright protection was the exception, it will now become the norm.
Facts of the case: The ‘Birthday Train’
The facts underlying the case decided by the German Federal Court of Justice were as follows: The claimant was a toys-designer who had designed the so called ‘Birthday Train’, a wooden train consisting of several wagons onto which numbers and candles can be placed. The designer licensed the rights in this product to the defendant. As the ‘Birthday Train’ turned out to be an unexpected commercial success, the claimant demanded additional royalties on the basis of copyright law. In this context, the courts dealt with the question, under what circumstances a work of applied art is eligible for copyright protection.
Changes in case law
In accordance with earlier case law, the lower courts held that the relatively simply design of the ‘Birthday Train’ was not eligible for copyright protection, as works of applied art require a special level of originality to be protected under copyright law. These high prerequisites for protection were based on the notion that works of applied art are primarily eligible for protection as a design right which already required the product to differ from the average level of originality. Consequently, works of applied art required an even higher, additional level of originality to be protected under copyright law.
The German Federal Court of Justice has now explicitly abandoned this earlier case law in its decision of 13 November 2013, case I ZR 143/12. The court argues that the 2004 amendments to German design law have established the protection of designs as an independent intellectual property right and therefore detached design law from copyright law. Most importantly, the protection as a design no longer requires a certain level of originality but only individual character, meaning that the design has to differ from any other design which has already been made available to the public. Considering that and the fact that copyright and design law are applicable in parallel, the German Federal Court of Justice decided that it is no longer justified to exclude a product that can be protected as a design from copyright protection or to require special preconditions for the protection under copyright law. Hence, works of applied art no longer require a special level of
German Federal Court of Justice expands copyright protection of works of Applied Art Intellectual Property, Germany
Intellectual Property, Germany
creativity to be protected under copyright law, as they are no longer subject to more rigorous level of originality, but protected under the same requirements as other creative works.
With its decision, the German Federal Court of Justice has strengthened the protection of works of applied art significantly as they will now enjoy a higher level of legal protection. Not only can they be protected as designs as long as they have individual character, they will now also be protected as a copyright in many cases. This decision will have a significant impact on legal practice. One aspect of this is that such works with individual character will now be protected until 70 years after the death of the artist, whereas registered designs expire after a maximum of 25 years. Furthermore, no registration is needed to enjoy copyright protection in Germany. Rather, copyright protection begins by law if a product design reaches a level of creativity that justifies the design being regarded as an artistic work, which does not require a high, but only some, level of originality.
When taking measures against counterfeiting and piracy, our clients can now also rely on copyright law in many cases, which will help to enforce their rights. However – which may be a downside in some cases – artists might now also try to obtain additional royalties on the basis that the initial compensation does not seem adequate in respect of the success of the product; though it must be taken in consideration that those claims might have already become time-barred.
This client newsletter is prepared for information purposes only. The information contained therein should not be relied on as legal advice and should, therefore, not be regarded as a substitute for detailed legal advice in the individual case. The advice of a qualified lawyer should always be sought in such cases. In the publishing of this Newsletter, we do not accept any liability in individual cases.
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