Do you own an iconic classic car and ever wondered whether it could be protected by copyright? Both the German Federal Supreme Court (BGH, Case I ZR 222/20, Judgment of 7 April 2022) and the Higher Regional Court (OLG) Braunschweig (Case 2 U 47/19, Judgment of 10 March 2022) recently wrestled with this question regarding the Porsche 356 and the original ‘VW Käfer‘.    

The cases were brought by the heirs of the respective car designers who sought additional remuneration on the basis of the statutory bestseller clause in § 32a German Copyright Act. This provision enables authors to ask for additional remuneration where an unexpected gain is made from the use of a work. Prerequisite for the heirs’ claims under the Copyright Act was, inter alia, that the Porsche and the VW Käfer are copyright works.    

Under German law, a car can be protected as a work of applied art under § 2(1) No. 4 of the Act if it is a personal intellectual creation, a concept close to that of the author’s own intellectual creation in EU law as applied by the European Court in 𝘊𝘰𝘧𝘦𝘮𝘦𝘭 𝘢𝘯𝘥 𝘉𝘳𝘰𝘮𝘱𝘵𝘰𝘯 𝘉𝘪𝘤𝘺𝘤𝘭𝘦. Thus, for a car to be protected by copyright, there must be additional creative features which are not merely necessitated by the technical function. While novelty is as such not relevant for assessing copyright protection, both the BGH and the OLG Braunschweig examined whether the designs of the Porsche and the VW Käfer simply repeated features that were habitual for cars at the time or whether they gave them their own characteristic traits.   

The outcome: while the BGH confirmed that the design elements exceed technical necessities and display sufficient individuality for the Porsche 356 to enjoy protection as an artistic work under German law, the OLG Braunschweig saw this differently for the VW Käfer. It did not matter that the Käfer may have become a cult object or a design icon; what mattered was that features like the egg shape or the ‘Beetle Smile’ that were thought to be iconic were nothing new, but instead reflected car design at the time.  

According to the UK IPO‘s Post Implementation Review of the repeal of Section 52 CDPA which was published at the end of last year, the majority of respondents to its consultation on the legal changes came from the classic car replica industry complaining of problems to their business model as a result of the characterisation of classic cars as works of artistic craftsmanship following the deletion of Sec. 52 CDPA from the statute book. Thus, the classic car copyright conundrum is not solely an odd feature of German law.