The ruling of the Federal Court of Justice (BGH) of 20 February 2025 (I ZR 16/24) on the copyright protectability of the Birkenstock sandal models ‘Madrid’ and ‘Arizona’ provides important insights for current and future cases in copyright protection, especially in the field of applied art.

The decision caused quite a stir and was widely commented on. The judgement has now been published in full and is worth a closer look:

In it, the BGH confirms that works of applied art can in principle be protected by copyright. However, it clarifies that not every creative achievement automatically enjoys copyright protection.

According to Section 2 (2) UrhG, a personal intellectual creation is required. This must have an individual character and achieve an aesthetic content that justifies the term ‘artistic creation’. The design must reflect the personality of the originator and be based on free creative decisions.

In the opinion of the Senate, the level of design must not be too low, even in the case of works of applied art. Mere craftsmanship using formal design elements is not sufficient. A level of design must be achieved that reveals individuality.

A personal intellectual creation is excluded if the design is predetermined by technical requirements. Copyright protection does not apply if the design consists solely of technically necessary or technically conditioned features and does not recognise any artistic achievement.

The plaintiff bears the burden of proof for the existence of a personal intellectual creation. It must present the work and explain the specific design elements from which copyright protection is to be derived. In the case of utility objects, the extent to which they are artistically designed beyond their functional form must be clearly demonstrated.

The court emphasises the distinction between ‘art’ and ‘pure design’. It is not sufficient for there to be any creative freedom at all, but the existing freedom must also be utilised in an artistic manner.

The BGH also states that there is no rule-exception relationship between design law and copyright law. The types of protection are not mutually exclusive, but cumulation is only possible in certain cases.

Notes for current and future cases

• Plaintiffs must carefully explain which specific design elements of the work justify copyright protection. In the case of utility objects, it is crucial to emphasise the artistic design over and above the functional form.
• It must be proven that the originator has utilised the existing scope for design in a creative way that reflects his personality. Technical necessities must not be the only characterising elements.
• The level of design must show individuality. It is not enough to merely demonstrate craftsmanship or the use of formal design elements.
• The involvement of experts can be helpful in proving the artistic achievement and the individuality of the design, even if this was not successful in the present case.
• With reference to the well-known Geburtstagszug decision (BGH I ZR 193/20, GRUR 2021), the requirements for an ‘artistic achievement’ are such that it is a creation of an individual character whose aesthetic content has reached such a degree that, in the opinion of circles receptive to art and reasonably familiar with art appreciation, it can be considered an ‘artistic’ achievement.
• It can be helpful to document the creative process in order to illustrate the creative decisions and the personality of the author.

The judgement shows that copyright protection for works of applied art cannot be taken for granted. Careful preparation and presentation of the features justifying protection is essential in order to be successful in a copyright dispute.

If you have any questions about copyright law, please contact us.