Birkenstock: Can sandals be art?

Today, the Federal Court of Justice (BGH) delivered its eagerly awaited ruling in the Birkenstock case.

As expected from the course of the oral proceedings, the court rejected copyright protection for the well-known Birkenstock sandals. This ruling once again underscores that, in works of applied art, the decisive factor is how the remaining design freedom has been artistically utilized and the hurdles are not too low.

For a long time, Birkenstock sandals were considered mere “health shoes.” However, by now, it is clear that they have become a true cultural phenomenon. Originally crafted by a shoemaker named Birkenstock in 1774 and primarily worn by the Woodstock generation in the 1960s, these sandals have experienced an unexpected hype since 2013. Worn by celebrities and supermodels and revamped with fur trims or glittery finishes, they have suddenly become socially acceptable as a “contrast to more elegant clothing” (Gaultier).

But is the footwear also a work of art? Opinions differ here.

In the oral hearing on January 9, 2025 the BGH discussed the question of whether the classic Birkenstock sandal qualifies as a work of applied art and is thus eligible for copyright protection. The proceedings involved three lawsuits filed by the Linz am Rhein-based shoe manufacturer against competitors Tchibo (Case No. I ZR 17/24), Bestseller (Denmark) (Case No. I ZR 16/24), and the Detmold-based Wortmann Group, which operates the online marketplace Shoe.com (Case No. I ZR 18/24). The defendants had sold sandals similar to Birkenstock’s “Madrid,” “Arizona,” and “Gizeh” models.

The Higher Regional Court of Cologne (OLG Köln) had denied copyright protection for these models in three separate rulings (OLG Köln, Judgment of January 26, 2024, 6 U 86/23; OLG Köln, Judgment of January 26, 2024, 6 U 85/23; OLG Köln, Judgment of January 26, 2024, 6 U 89/23), diverging from earlier decisions by the Cologne Regional Court (LG Köln) (LG Köln, Judgement of May 11, 2023, 14 O 39/22; LG Köln, , Judgement of May 11, 2023, 14 O 41/22; LG Köln, , Judgement of May 11, 2023, 14 O 121/22 and also from a preliminary injunction ruling by the Hamburg Higher Regional Court regarding the “Madrid” model (OLG Hamburg, Order of October 14, 2021, 5 W 40/21). The Cologne court argued that the sandals did not meet the requirements for a copyrighted work under the case law of the European Court of Justice (ECJ) and the BGH.

During the oral proceedings, the BGH’s First Civil Senate had already indicated its inclination to follow the OLG Köln’s reasoning. Presiding Judge Thomas Koch emphasized that defining a work of applied art requires a certain level of originality, and the burden of proof lies with the party claiming copyright protection. For everyday and functional objects, it must be carefully examined whether a sufficient degree of creative design is present. Birkenstock’s attorney, Christian Rohnke, criticized this approach, arguing that it sets the bar too high, effectively limiting copyright protection to non-functional art not intended for commercial use. As the “Porsche of sandals” the Birkenstock sandal must be protected by copyright, he said.

Utility objects like sandals are not per se excluded from copyright protection. They are considered works of applied art, which differ from classical pure artworks in that they serve a functional purpose.

In the case of such works of applied art, it is essential to carefully examine whether the form and design of the object are solely dictated by its technical function or whether it goes beyond that and is artistically and creatively designed.

The key issue in the discussion is the concept of “personal intellectual creation.” According to Section 2 paragraph 1 number 4 of the German Copyright Act (UrhG), works of fine art, including applied art, only qualify for copyright protection if they constitute personal intellectual creations within the meaning of Section 2 paragraph 2 of the German Copyright Act.

For a work to qualify as a personal intellectual creation, it must have an individual character and a level of aesthetic expression that is recognized by those familiar with art and aesthetics as an artistic achievement. This interpretation aligns with EU copyright law, as defined by Directive 2001/29/EC (InfoSoc Directive) and clarified by the ECJ.

Works of applied art and functional objects can be eligible for copyright protection if they reach a sufficient level of originality. However, if an object’s design is primarily determined by technical considerations or practical constraints that leave no room for artistic freedom, it lacks the necessary creative threshold.

The decisive factor is whether the remaining design freedom—beyond the functional aspects—has been artistically utilized. Anyone claiming copyright protection for a functional object must demonstrate and prove that the object has been artistically designed beyond its technical and functional constraints. It must exhibit free creative decisions and aesthetic choices that are not dictated by function (BGH, Judgment of May 12, 2011, I ZR 53/10 – “Seilzirkus”).

In line with its “Birthday Train” jurisprudence (BGH, Judgment of November 13, 2013, I ZR 143/12 – “Geburtstagszug”), the BGH reaffirmed that works of applied art are not automatically subject to stricter originality requirements than purely artistic works.

The court did not find it necessary to suspend the case in light of the referral to the ECJ in the USM Haller case (BGH, referral decision of December 21, 2023, I ZR 96/22), where the BGH asked whether copyright protection for applied art requires higher originality standards than other types of works.

The BGH, consistent with the OLG Köln and its previous rulings, stressed that copyright protection should require a non-trivial level of originality, especially considering the long duration of protection – 70 years after the author’s death.

The BGH concluded that the required level of originality was not met for Birkenstock’s sandals. The available design choices were primarily dictated by technical and functional considerations rather than creative freedom. The design of these orthopedic sandals was shaped by foot health principles, lacking sufficient artistic elements.

For copyright protection, aesthetic impact must stem from artistic achievement rather than functionality. Merely choosing between different design options does not constitute a creative act. The court ruled that the design of the sole, upper, and strap construction did not sufficiently differentiate itself in an artistically original manner from existing designs and general everyday creations.

The design of the sole, the upper, and the strap construction of the sandals does not stand out sufficiently in an artistically original way from the existing design repertoire and the mass of everyday creations. According to the court, it is not characterized by an objectively recognizable exercise of artistic freedom.

At this point, the judgment of the Cologne Higher Regional Court (OLG Köln) contains instructive remarks on the relationship between copyright and design protection (OLG Köln, judgment of January 26, 2024, 6 U 86/23). While design is about translating a function into a form (“form follows function”) that “on the one hand, is novel but, on the other hand, is still just accepted by the market (MAYA – most advanced yet accepted, according to Raymond Loewy, Industrial Design, Berlin 1979, pp. 20 ff.),” copyright protection is about “a personal, individual creation that does not have to meet any functional requirements but stands independently for itself (…).”

“Art begins with an idea, design with a task.”

According to the court, it was also unnecessary in these proceedings to address another question submitted to the ECJ in the USM Haller referral decision (BGH, referral decision of December 21, 2023, I ZR 96/22), namely whether the inclusion of a utility object in art exhibitions or art museums can be considered an indication of artistic merit. This was not relevant here, as the Birkenstock classics have only been exhibited and recognized in design museums and design exhibitions.

The Cologne Higher Regional Court and the Federal Court of Justice (BGH) also left open the third referral question from the USM Haller decision (BGH, referral decision of December 21, 2023, I ZR 96/22), namely whether the subjective perspective of the creator on the creative process should also be considered and whether they must consciously make free creative decisions for them to be recognized as such under the case law of the Court of Justice of the European Union. There was already a lack of a conclusive submission and supporting evidence in this regard.

Key Takeaways on Copyright for Functional Objects:

• Design and copyright protection can coexist.
• No strict hierarchy, but a rule-exception relationship: Functional objects are less likely to meet copyright requirements than design protection standards.
• The artistic scope for functional objects is more limited.
• Only the time of creation matters for assessing originality.
• The originality threshold must not be set too low.
• The burden of proof lies with the claimant to show artistic utilization of design freedom.