BGH abandons distinction between works of applied and purpose free art

The German Federal Court of Justice (BGH) this week confirmed (case reference I ZR 143/12 of 13 November 2013 – Geburtstagszug/in English: birthday train) that after the 2004 reform of the Geschmacksmustergesetz” (German Registered Designs Act) the traditional distinction between “works of applied art” (Werke der angewandten Kunst)  and “works of purpose free art” (Werke der zweckfreien Kunst)  has been abandoned.  The 2004 reform became necessary to implement Directive 98/71/EC.

.. will the designer be paid a higher fee ?

This distinction concerned the level of originality required to obtain copyright protection in German copyright law:  works of purpose free art (that is proper Museum type art, Merpel helpfully adds) attracted copyright protection much more easily, whereas works of applied art (these are designs of banal everyday things, Merpel explains) had more of an uphill struggle to be protected under copyright law.  Now even everyday type designs can be protected under the German Registered Designs Act, as well as under copyright laws.

What happened?  The claimant, an independent toy designer, in 1998 for a fee of € 400 drew designs for a wood "birthday train" for the defendant, a toy manufacturer.  The claimant pointed to the changes in the law as well as Directive 98/71/EC and argued that her designs were copyrighted works.  Given the large success of the toy, the claimant felt that her fee had been too low.   The lower courts agreed with the defendant, on further appeal the BGH agreed with the claimant and clarified that protection under the German Registered Designs Act and Copyright protection can exist in tandem. For works of applied art to be able to attract copyright protection, the BGH explained that it was now sufficient that these - in view of the circles that were receptive to and familiar with the arts - achieved a level of originality that allowed it to speak of an artistic achievement.  The case will thus be sent back to the Court of Appeal which now has to decide whether the toy train achieves this lower level of originality and thus a higher remuneration for the claimant as stipulated under German Copyright laws.

The court’s press release can be found here (in German).

Background to this change in the law, more about this case and lots of IP fun can be found on Axel Horn’s excellent blog (in English) – compulsive reading.