Federal Court of Justice
Are Birkenstock sandals art? BGH judges copyright law
As you stand by the Birkenstock sandals – everyone knows the design. But are the shoes of works of art and are therefore protected by copyright? The BGH took a close look at this.
What art is is often in the eye of the viewer. Sometimes it needs an objective assessment. For example, when it comes to whether Birkenstock sandal works of applied art and thus copyrighted are protected against imitation. The Federal Court of Justice (BGH) dealt with this question. Now there is a decision.
Birkenstock had sued three competitors who sold sandal models that are very similar to their own. The shoe manufacturer, headquartered in Linz am Rhein in Rhineland-Palatinate, sees a violation of copyright law. Because the Birkenstock sandals are works of applied art that should not simply be imitated.
On Thursday it will be shown whether the BGH sees it that way. The lower courts were disagreed with the question. While the Cologne Regional Court initially recognized the shoe models as works of applied art and took up the complaints accordingly, they were later rejected by the Higher Regional Court (OLG) Cologne at the appeal of the defendant. The court could not determine artistic achievement.
Copyright protects creative services
Copyright initially gives the creator of a work the exclusive rights of use on this property. Third parties must not reproduce or reproduce it without permission. The protection remains up to 70 years after the author’s death. Unlike, for example, patent or design law, copyright is used to protect creative services. Protected by copyright are thus protected, films, films, computer programs – as well as works of the visual or applied art.
Birkenstock lawyer Konstantin Wegner explained before the negotiation in January, it has been recognized in copyright for decades that outstanding design of everyday objects can also be protected by copyright. This would have already decided this to shine in the style of the Bauhaus art school, furniture by the architect and designer Le Corbusier and a Porsche model.
“Brutalist” sandal design
In this tradition, Birkenstock also sees its own sandal designs. Specifically, the BGH is about four models: “Arizona” (the sandals with two wide straps that were given special mention in the Hollywood film “Barbie” in 2023), “Madrid” (with a belt), “Gizeh” (with toe separator) as well as the clog “Boston”. According to the company, it is the classics that typically associated consumers with the brand.
According to the plaintiffs, it is both individual elements such as buckles, materials or belt leadership, as well as the combination of these elements, which made the sandal models works for the art of applied art and justified copyright protection. The design of inventor Karl Birkenstock in style brutalism was unique when the classics first appeared.
OLG saw no artistic decisions
When assessing the legal assessment, the focus is on whether Birkenstock has exploited an artistic design scope beyond the functional purpose of the health sandals. The OLG Cologne had no. Accordingly, no artistic decisions could be derived from the objective appearance of the sandals. A mere selection between different design options is not enough.
The BGH’s first civil senate said at the hearing in January that according to the first assessment, the OLG set the right standards during its assessment. It correctly called for a certain design height to definition a work of applied art. The burden of explanation for copyright protection lies with the plaintiff manufacturer.
dpa
Source: Stern
