From the land of the “Beetle smile” or on the protection of the famous shape in Germany
The Porsche 911 decision of the Federal Court of Justice (I ZR 222/20) and Ur-Käfer decision of the Higher Regional Court of Braunschweig (2 U 47/19)
The Volkswagen Beetle and the Porsche 911 are indisputably among the great classics of automotive engineering. On March 10, the Higher Regional Court of Braunschweig ruled on the claims of the heiress after a body designer of the then Porsche Konstruktionen GmbH to the appearance of the original VW Beetle, from which she derived participation claims in the sales success of the VW New Beetle, which had been produced by VW in the years 1997 to 2010. Shortly afterwards, on April 7, the Federal Court of Justice pronounced its verdict in a dispute in which the same heiress had asserted similar claims relating to the Porsche 991 series of the Porsche 911 type from a comparable set of facts. The testator had died in 1966, so that the copyright protection period in both disputes would still run until 2036, if copyright protection existed for the respective designs. The Higher Regional Court of Braunschweig dismissed the action outright, while the Federal Court of Justice referred the case pending there back to the Court of Appeal for a new hearing.
Both cases involved a whole series of important copyright issues that may well also arise in the case of other iconic designs that have been perpetuated in constantly changing form, but still as part of a line of development over decades. From the abundance of legal problems that were dealt with here, three legal questions and one factual one are to be highlighted.
Is fame of the design sufficient for copyright protection?
In the case of famous and particularly long-lived designs from the field of applied art, factors come into play that otherwise play no role in copyright disputes. The fact that a shape becomes iconically famous at some point does not mean that it was particularly original at the time of its creation.
The VW Beetle in particular is a good example of this, and the richly illustrated Braunschweig decision shows a whole wealth of amazingly similar vehicles from the time when the “Volkswagen” was created, to which the later global corporation owes its name – and which no one knows today. Of all these vehicles, only the “Beetle” survives in the consciousness of the global public. It had already become a kind of “living fossil” long before the last production decades of the original model series, when it was only produced in Central and South America, the last survivor of a way of building cars that had long since become obsolete.
Therefore, the legal assessment must be made on the basis of the set of forms known at the time of creation, even though this may have later fallen into oblivion. The Higher Regional Court of Braunschweig correctly recognized this in its decision. In the Porsche decision, there is only a brief reference in the same sense (para. 31).
“Cultic”, at any rate, must be concluded from the decision of the OLG Braunschweig, is not a copyright category, just as little as “famous” or “groundbreaking in art history”. Other courts are not so stringent in this respect, as is shown by the very generous case law on the protection of tubular steel furniture from the Bauhaus period, in which copyrightability seems to be inferred from art historical significance.
Which standard of protection is decisive?
Separate from the question of the set of forms to be used for comparison is the question of which of the legal standards that have changed again and again in the decades since famous designs such as the Beetle or the Porsche 365 or 911 were created is to be used as the standard for the examination. Which standard of protection is to be applied to an ancient design – especially in the field of applied art?
- The standard of protection at the time it was created?
- The standard of protection before the Seilzirkus and Geburtstagszug decisions of the BGH (GRUR 2014, 175 – Geburtstagszug)?
- The standard of protection before the ECJ’s Cofemel and Brompton decisions (C-683/17 – Cofemel; C-833/18 Brompton)?
The BGH clearly measures against the latest standard harmonized by the ECJ. The OLG expresses itself misleadingly in this respect, but would apply today’s standards to the actual situation at the time of creation and deny protection to an object which, according to today’s standards, was not protectable on the basis of the facts at that time (in particular in view of the then known set of forms).
Questions of copyright law
Both the BGH and the OLG Braunschweig apply the current rules of copyright contract law also to an author who, like the plaintiff’s father as an employee of the defendant’s legal predecessor, is subject to Section 43 UrhG (authors in employment and service relationships). Both decisions consider the fairness compensation of Section 32a UrhG to be applicable without further ado even in such cases. However, this only concerns new cases that arose after the new regulation came into force at the end of March 2002.
Visualization aids for the court
Time and again, it becomes apparent that two worlds collide in copyright law: That of the creators and that of the lawyers who have to deal with the creators’ output. In a legal dispute over a piece of music, how does one convey the essence of the dispute if the court is not musically trained? In the field of applied art, how can one make it clear what is at stake? The designers usually have a well-developed spatial imagination, which the discerning judges, on the other hand, do not necessarily have.
That is why many a trial in this field has been won (or lost) because the two samples, “original” and “alleged imitation” were physically expedited into the courtroom – this may involve a not inconsiderable effort in the case of bulky objects.
But what can be done when the object in question does not fit into the courtroom or – as in the Braunschweig case concerning the authorship of the VW “Beetle” – the supposed original only exists as a design drawing? One of the questions at issue was whether the formative shapes of the later “Beetle” were already present in the subsequent drawings.
Here, the defendant party broke new ground with a visualization aid for the court in the form of a virtual model that could be displayed three-dimensionally in all conceivable views and juxtaposed with the subsequently executed vehicle.
Thus, even the layman could see that the design of the plaintiff’s side was by no means “smiling”, contrary to the plaintiff’s claim, because the hood in the alleged original was completely straight. The view from diagonally behind also shows that the executed Beetle followed a completely different design concept than the alleged original, recognizable from the protruding fenders, the running board and the rear section, which also ends in a bulge, in the executed vehicle. The OLG Braunschweig correctly subsumed on this basis.
Such visualization aids can be produced with current CAD technology with manageable effort, even if under certain circumstances not always in such high quality as shown here.
Conclusion
The great willingness (one could almost say relief) with which the recognizing court made use of this assistance shows how important it can be, especially in the field of applied art, to argue as much visually as linguistically.
