The Birkenstock sandal is recognizable for its large curls, its large flows and its sole made of cork. But shoes are not considered works of art, the highest civil court in Germany has ruled.
The German shoe company had filed a complaint against three competitors who sold sandals similar to theirs, saying that its products “are works of art applied by copyright” which cannot be imitated.
But the case was rejected, the federal judge of the Court of Justice, Thomas Koch, described the “unfounded” complaints because the sandals are not protected on the right.
In his decision, he wrote that for copyright protection to apply, “a level of design must be reached which reveals individuality”.
Under German law, the protection of copyright is valid 70 years after the death of the creator, while the protection of the design is based on the life of the product and ends after 25 years.
Birkenstock sandals. Pic: AP
The legal distinction between design and art in German law lies in the aim of a product. The design serves a practical function, while the works of applied art require a perceptible level of individual artistic creativity.
The creator and shoemaker of Birkenstock, Karl Birkenstock, who was born in 1936, is still alive, but since he designed his initial creations in the 1970s, some sandals no longer enjoy the protection of design.
Consequently, the company’s lawyers asked the court to classify shoes and art.
Lawyer Konstantin Wegner argued that the sandals had an “emblematic conception” and said that there would be more disputes after the announcement of the decision of the Federal Court of Justice.
The case turned out to be controversial, having been heard in two lower courts before, which did not agree on the issue.
A regional court of Cologne initially recognized shoes as applied works of art and granted the orders, but the superior regional court of Cologne canceled the orders on appeal, according to the German news agency DPA.
The Court of Appeal said that it was unable to establish an artistic achievement in the sandal.
Formerly popular with hippies, technology enthusiasts and health professionals, Birkenstock drew generalized attention after Australian actress Margot Robbie wore a pair of pink Birkenstocks in the final scene of the successful film in 2023 Barbie.
Has it already happened?
Historically, it is difficult for fashion pieces to be considered as original works of art.
In the United Kingdom, to obtain protection against copyright, fashion work must fall into one of the eight categories set out in the 1988 law on copyright, conceptions and patents.
Copyright is also different from the brand, the first protects the original creative elements of a design, such as models, prints or unique graphic designers, while the latter protects the identity of a brand like logos , the names and symbols that distinguish him from competitors.
A rare example of success occurred in the Netherlands in 2004 and was focused on perfume, not clothes.
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An ad for the scent of Tressor Lancoma. Pic: Ray Tang / Shutterstock
The small Dutch company Kecofa Cosmetics was ordered by a court in 2004 in the city of Maastricht to stop producing, selling, storing, importing and exporting its female treasure of perfume, as its odor reproduced Tressor, manufactured by the manufacturer of French perfumes and the Lancoma cosmetics.
The court ruled at the time that Tresor was original and bears a personal stamp from the manufacturer, and could therefore be considered as a work protected by copyright under the Copyright Act in 1912 .
Kecofa was also ordered to pay € 16,398 in Lancoma, plus all of his profits from the sale of female treasures, according to court documents.