The Federal Court of Justice (FCoJ) ruled on November 13th, 2013, (Az: I ZR 143/12) about the copyright on decorative arts. Whereas, it was heavily questioned before this decision, if decorative arts were to be protected as copyrights in the same way as other works, this is now decided by the highest national court.The plaintiff designed wooden trains as toys for children in the late 1990’s and received a revenue of 400 Deutsche Mark (equal around 200 €) by the defendant. After the great success of this birthday train, the plaintiff argues her work is copyright protected and her remuneration was – regarding to the business success – not appropriate. Therefore, she claims a higher remuneration in respect of the copyright act. The FCoJ argued in earlier decision, copyright protection for decorative arts were not granted the same way it is granted for other works. This was mainly based on the fact that decorative arts could be also protected as design under design legislation. Therefore, decorative arts must had have a higher level of originality or creativeness as other works. The decorative arts which did not reach this level could have been protectd as design. However, since the amendment of the design act in Germany in 2004 this jurisdiction was to be adapted. The new design act grants protection not for a certain level of creativeness, but for distinctiveness. Design protection is therefore a new kind of intellectual property (IP) and may exist next to copyright protection. Both regimes are not mutually exclusive. For this reason, copyright protection for decorative arts has no higher requirements as other works. As far as decorative arts gains a level of creativeness that justifies to speak of an reasonably „artistic performance“ by groups reasonably considered familiar with art . This also applies to the custom built drafts in 1998 of the plaintiff. Author: Attorney at Law Felix Seehausen
