Sandals are not art and don’t get copyright protection, Germany’s highest court tells Birkenstock

Germany's Federal Court of Justice has just ruled that Birkenstocks are just sandals, not works of art.

The company which makes the iconic sandals, Birkenstock Group B.V., has for some years been waging a legal campaign to get its sandals declared as art, which would then mean they would automatically qualify for copyright protection, instead of the design rights protections they currently enjoy.

The difference between the two rights is that copyright lasts for 70 years from the death of the creator and is automatic whenever a ‘work of the mind’ is created; design rights expire after a maximum of 25 years. Many of the models in Birkenstock’s range have long passed this deadline.

However, the designer credited with many of the designs at issue is Karl Birkenstock, who is still alive. He invented and launched a standardized, permanently installed, anatomically shaped insole in 1963.

In 2017, a regional court in Cologne had accepted Birkenstock’s claim that its sandals were art in a case the sandal company brought against three competitors with very similar products for copyright. The company had asked for an injunction to stop its competitors from making copycat sandals and a court order telling them to recall and destroy any already on the market.

This was overturned on appeal by a higher Cologne court in 2022. Birkenstock appealed that decision, leading to the latest verdict.

The country’s highest court has now said that the product designs are functional and that there is no artistic element in their design.

The court said: “For the copyright protection of a work of applied art — as for all other types of work — the level of design must not be too low. Purely technical creation using formal design elements is not eligible for copyright protection. Rather, for copyright protection, a level of design must be achieved that reveals individuality.”

Birkenstock’s lawyers have indicated they intend to appeal the decision, but it is not clear who to. As it is an IP matter, it may be that Birkenstock can take it to European Union courts.

The Birkenstock family sold control of the company to venture capital firms L Catterton and Financière Agache, a private equity firm backed by LVMH, in 2021. While the purchase price was not disclosed, media reports, including this story in The Guardian, suggest it was around $4bn. Members of the Birkenstock family retained a minority holding and continued to be responsible for production in Germany.

Two years later, in 2023, Birkenstock filed for an initial public offering and listed on the New York Stock Exchange. The IPO raised $1.48bn valuing the company at $8.64bn. L Catterton ended up the controlling shareholder, with 83% of the company’s shares.

When Karl Birkenstock’s new sandal designs were launched in America in 1966, selling them in to shoe stores in the US was initially a challenge. The distributors opted to supply them through health food stores, and as a result they became associated with the 1960s hippy lifestyle.

However, since the 1980s, Birkenstock products have moved into the mainstream and also into high fashion. A pair of Apple founder Steve Jobs’ Birkenstock sandals, worn by him in the 1970s and 1980s sold for $220,000 at a New York auction in 2022, while the brand has collaborated with designers including Valentino, Dior, and Manolo Blahnik, as well as supermodel Heidi Klum.

The brand has also recently enjoyed film stardom – as reported on the art site ArtNet, in the final scene of the 2023 film Barbie, Barbie, played by Margot Robbie, trades in her high heels for a pair of pink Birkenstock Arizona sandals.

This was not something the company paid for – in an interview with Variety magazine, the film’s director, Greta Gerwig, said: “I will have it be known, that the Birkenstocks was not product placement. We just wanted Birkenstocks… the Birkenstock at the end shows how Barbie changes from beginning to end. We wanted it to be pink because she’s still Barbie.”