On February 20, 2025, the German Federal Court of Justice (Bundesgerichtshof, BGH), the supreme court for civil and criminal matters, ruled that Birkenstock sandals are not “artistic works” within the meaning of the German Copyright Act (Urhebergesetz, UrhG), and therefore do not enjoy copyright protection. The court dismissed three separate proceedings brought by the plaintiff Birkenstock Group that sought a cessation of the alleged infringements and damages. (BGH, I ZR 16/24, I ZR 17/24; I ZR 18/24.)

Background on the German Copyright Act

The German Copyright Act protects “artistic works,” which are the defined as the author’s “own intellectual creations.” (UrhG, § 2, para. 1, no. 4, para. 2.) Copyright protection grants the author exclusive rights, such as economic rights to guarantee control over the work and renumeration for its use through sale or licensing. (§§ 11; 15; 29, para. 2; § 31, para. 1; § 64.) In addition, the Copyright Act grants authors “moral rights,” such as the right of publication, right of attribution, and a right to prohibit a distortion of their work. (§§ 12, 13, 14.) Authors obtain copyright protection from the moment the work is created without the need to apply for copyright protection. (§ 2, para. 2.) Copyright protection lasts for 70 years after the death of the author. (§ 64.)

The author also has the right to require a cessation of copyright infringements, a right to damages for infringements, a right to information regarding the origin and the distribution networks of infringing copies, and a right to destruction, recall, and release of copies. (§§ 97, 98, 101.)

Plaintiff Birkenstock Group

The plaintiff, Birkenstock Group, is a German company. In 1963, Carl Birkenstock released the first Birkenstock sandals, which have a cork and latex footbed. Birkenstock sandals were known as “healthy footwear” with orthopedic features and commonly used by healthcare workers. The first design of the Birkenstock sandals was a sandal with one strap (“Madrid”). Later, additional designs of sandals, such as the two- strap sandal “Arizona,” were added. (Birkenstock, History.)

Facts of Case I ZR 16/24

The defendant in Case I ZR 16/24 is a competitor of Birkenstock that sells leather sandals that look similar to Birkenstock’s Madrid and Arizona models. (BGHZ I ZR 16/24, paras. 1, 2.) Birkenstock claimed that its sandals are artistic works of Carl Birkenstock within the meaning of the German Copyright Act, and alleged that the sale of similar sandals by the defendant violated its copyright. Birkenstock argued that by designing the sole shape, bone-pattern sole, and cut of the sandals, and by selecting the materials for manufacturing the sandals, Carl Birkenstock created an “iconic, brutalist, and characteristic design.” (BGHZ I ZR 16/24, para. 3.)

Birkenstock demanded that the defendant recall, stop selling, and destroy similar sandals, and provide compensation for the violation of its copyrights. (BGHZ I ZR 16/24, paras. 4, 5.)

Decision

The Federal Court of Justice held that Birkenstock sandals are not artistic works within the meaning of the Copyright Act and dismissed the claims. (BGHZ I ZR 16/24, paras. 14, 21.) The court determined that Birkenstock had not provided sufficient evidence that its sandals are an intellectual creation for copyright purposes. (BGHZ I ZR 16/24, para. 30.)

The court pointed out that its definition of “artistic work” corresponds with the definition of the Court of Justice of the European Union (CJEU). According to the CJEU, artistic works are only protected by copyright if they contain elements that are expressions of author’s own intellectual creation. (CJEU, paras. 35, 39; BGHZ I ZR 16/24, paras. 16, 20.)

The court explained that an intellectual creation must possess an individual character with sufficient aesthetic quality for it to be regarded as an artistic object. For copyright protection to be warranted, the author must demonstrate creative freedom in an artistic manner. A work cannot be classified as an intellectual creation if the design is determined by technical requirements, such as formal design elements, rather than the exercise of artistic freedom. In the case of commodities with design features based on the intended purpose of use, the object’s creation must go beyond the functional aspect and reach a certain level of artistic sophistication. (Paras. 15, 16, 18, 19.)

The court determined that Birkenstock sandals are not an intellectual creation and lack an individual character. Although they leave a characteristic impression, they do not adequately differ from the usual design of a “health sandal.” The author Carl Birkenstock designed the sandals based on the known shape of footwear using the craftmanship of an orthopedic shoemaker. (Para. 31.) The fact that Birkenstock sandals are displayed in design museums or exhibitions does not affect the court’s conclusion that the sandals lack artistic value for purposes of copyright law. (Para. 32.)

Prepared by Eva Schnitzler, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist

Law Library of Congress, March 14, 2025

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