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.