Copyright protection now also for simple works of applied art!

With the landmark decision "Birthday Train" the BGH has abolished the differences in the assessment of copyright protection for applied and non-applied art. From now on, works of applied art, such as for example the design of everyday products as well as all graphic works of advertising agencies, are to be qualified as copyright-protected works even at a low level of creative effort according to the so-called "small change" standard.

In the present case, 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 can be placed (birthday train), became a sales success, so that the product designer sued the toy manufacturer many years later for payment of an appropriate remuneration.

The toy manufacturer defended itself against this copyright claim with the argument that, according to settled appellate case law, applied art is only to be qualified as copyright-protected works if it significantly exceeds the usual average design. In the past, this was accepted by the courts only rarely (for example, in furniture design classics), so that the lower courts rejected the product designer's claims for appropriate remuneration already on the grounds of the absence of a copyright-protected work.

Court Decision

By judgment of 13 November 2013 –Az. I ZR 143/12 (Press Release) the Federal Court of Justice (BGH) decided that copyright protection for works of applied art should fundamentally not be subject to higher requirements than copyright protection for works of non-applied art.

In its earlier case law, the Federal Court of Justice (BGH) had justified the higher requirements for the level of design of works of applied art that are eligible for design patent protection on the grounds that such works of applied art have available a design patent right that is similar in nature to copyright. Since the design patent-protected design must already differ from unprotected average design, a further distance for copyright protection was required, that is to say a clear exceeding of the average design.

The BGH could not maintain this case law in view of the reform of design patent law in 2004. This reform created an independent industrial property right in design patent law and eliminated the close relationship to copyright. In particular, protection as a design patent, which could exist alongside copyright, no longer required a certain level of design, but rather the distinctiveness of the design.

Fundamentally, no different requirements are to be imposed on copyright protection for works of applied art than on copyright protection for works of non-applied visual art or literary and musical creation. It is therefore sufficient that the applied art achieves a level of design that, in the opinion of circles receptive to art and reasonably familiar with artistic views, justifies speaking of an "artistic" achievement.

Conclusion

The press release published so far by the BGH leaves some questions open, so that the reasoning of the judgment must be awaited for a final assessment of this decision.
According to our preliminary assessment, following this decision of the Federal Court of Justice (BGH), a large proportion of designed products and graphic works will be subject to assessment according to the "small change" standard as copyright-protected works, insofar as it is "justified in the opinion of circles receptive to art and reasonably familiar with artistic views to speak of an 'artistic' achievement". It is possible that the courts will make some correction to this new case law of the BGH regarding the copyright eligibility of applied art through this criterion in the future.