Copyright Protection for the Works of Applied Art: Evaluation through the Lens of Birkenstock Judgement

Abstract

This paper examines the protection of works of applied art under copyright law through the lens of the German Birkenstock decision while doing a comparative analysis of the copyright protection for the works of applied art in the jurisdictions of the United States of America and India. The main theme of the study is to explore how functional product designs ‘specifically the iconic Birkenstock sandals’ are evaluated as “works of applied art” and to analyze the divergent standards that apply in different jurisdictions. We highlighted problems arising from rigid definitions of artistic creativity that exclude designs driven primarily by functional or ergonomic considerations. In Germany, the Bundesgerichtshof’s Birkenstock judgment rejected copyright protection because the sandals’ form reflected ergonomic and commercial imperatives rather than “artistic elevation,” demonstrating how popularity and recognizability alone cannot satisfy the threshold of personal intellectual creation. In the U.S., we discuss statutory concepts of “useful articles” and the doctrine of separability, as refined in Star Athletica v Varsity Brands, where courts protect surface ornamentation if those aesthetic elements can exist independently as pictorial, graphic, or sculptural works. In India, we analyze the Copyright Act’s Section 15, which withdraws copyright from designs capable of registration once reproduced in more than fifty units, as applied in key cases like Microfibres Inc. v Girdhar & Co. and Ritika Pvt. Ltd. v Biba Apparels. We highlight how India’s bright-line rule forces designers to choose between finite design registration and limited copyright protection, constraining creative incentives. The paper suggests that, while the U.S. framework offers predictable separability tests, India’s stringent thresholds may require reform to balance creative incentives with competition policy. By contrasting qualitative thresholds with bright-line rules, the paper underscores practical implications for designers and policymakers navigating applied art protection.