Damages for the inventor of the birthday train?

In its "birthday train" decision of 13.11.2013 (press release), the Federal Court of Justice (BGH) ruled that copyright protection for works of applied art is in principle not to be subject to higher requirements than copyright protection for works of non-functional art. The Higher Regional Court (OLG) Schleswig-Holstein was now called upon to decide again on the copyright protection status of the toy train.

In the case at hand, the product designer of a children's toy had received DM 400.00 from a toy manufacturer for the design. This had also been agreed between the parties by contract. The wooden train, on which candles could be mounted (birthday train), became a bestseller, so that the product designer sued the toy manufacturer many years later for payment of reasonable remuneration for the train and two other toys designed by her (fishing game and birthday caravan).

The lower courts rejected a judgment against the toy manufacturer on the grounds that according to established appellate case law, functional art could only be qualified as copyright-protected works if these surpassed the usual average design to a high degree.

The BGH (Bundesgerichtshof) set aside the decisions of the lower courts and clarified that copyright protection for works of applied art is in principle not to be subject to higher requirements than that for works of non-functional art (copyright protection for works of applied art is in principle not to be subject to higher requirements than that for works of non-functional art (we have reported on this).

It remitted the case for new hearing and decision to the OLG.

Court decision

The Higher Regional Court (OLG) Schleswig-Holstein announced in a press release that the court, by judgment of 11.09.2014 (Az. 6 U 74/10), dismissed the product designer's action also in the second instance.

The birthday train designed by the toy designer, like the fishing game, enjoyed no copyright protection because these toys, even according to the rules established by the BGH, lacked the degree of creative work and individuality necessary for copyright protection. This was the case here because the fishing game and the birthday train built upon existing models – that is, similar toys – and the changes made did not possess sufficient independent individuality and thus work quality.

The birthday caravan, by contrast, possessed sufficient independent creative work. However, the copyright-related claims arising from this had become time-barred because the product designer had not asserted them in court within the three-year limitation period.

Specifically, already in 2003 the commercial success of the birthday train and caravan was apparent to the designer, so that her claims became time-barred as of 01.01.2007.

Conclusion

Following the BGH decision, the OLG had to examine whether the toys designed by the plaintiff met the lower requirements now applicable to the degree of creative work for works of applied art. At the smallest independent creative effort (so-called "small coin"), this should actually be affirmed. However, the OLG saw in the birthday train apparently no independent work, but merely a servile adaptation of an existing work. In that case, the designer has no independent copyright and thus no claims against the toy manufacturer.