German copyright law provides protection not only in the field of non-utilitarian arts, but also for creations of applied arts (see e.g. News of April 29, 2008 relating to the protection of furniture designs). According to traditional practice, there has been an elevated protection threshold in this field, i.e. creations of applied arts had to reach an increased level of “originality” compared to creations of non-utilitarian arts. The reason is that new creations in the field of applied arts have always been eligible for industrial design protection, and the complete industrial design law would be pointless if copyright law, being more extensive particularly in respect of duration (time of protection: 70 years as of the date of the creator’s death), could regularly be applied for creations of applied arts. The same understanding had already been expressed by the Supreme Court of the German Reich (RG) (RG, Judgement of June 10, 1911 – I 133/10 – Frakturschrift), as well as by the German Federal Constitutional Court (BVerfG) nearly 100 years later (BVerfG, decision of January 26, 2005 – Laufendes Auge). In order that a new creation is capable of being protected not only by an industrial design, but also by copyright, it needed to outperform average creations considerably. By practioners this was said to be the „big coin” in the field of applied arts, whereas otherwise the concept of a “small coin” applied, i.e. it may be sufficient to surmount the ordinary only to some extent.

Recently, the German Federal Court of Justice (BGH) abolished this gradual relationship. According to its judgment “Geburtstagszug”, no different  requirements shall be posed in the field of applied arts as compared to different kinds of creations (judgment of November 13, 2013 – I ZR 143/12). The main reason for this fundamental reorientation of case law is based on a change of the German design law, in particular relating to criteria and scope of protection. As a result of the European harmonization of this field of law the requirement of a certain level of originality (“peculiarity”) has been abolished and replaced by a criterion of distinctiveness to other creations (“character”) (see News of July 25, 2007). From this the BGH derived that design protection cannot be considered anymore as “of same nature, but lower degree” as compared with copyright protection. According to the BGH, the requirement of the “big coin” cannot be upheld any longer.

Thus, in the future it will be easier to claim copyright protection for utility articles, for instance if design protection has been missed. However, the BGH also expressed that copyright protection ought to tie in with a creative influence on the design. As far as the design is caused by the purpose of use, copyright protection should not apply. It is therefore not expectable that design protection will become needless (for requirements of protection see News of June 15, 2010).