“Birthday Train (Geburtstagszug)”

• (a) In principle, no other requirements are to be made for copyright protection of works of applied art within the meaning of Sec. 2(1)(4) and Sec. 2(2) of the Copyright Act than for copyright protection of works of non-utilitarian fine art or of literary and musical creation. Therefore, it is sufficient that they achieve a level of creativity that allows a public that is open to art and relatively familiar with views on art justifiably to speak of “artistic” creativity. They need not, however, clearly surpass the average design (departing from this Court’s decision of 22 June 1995 – Silberdistel).

• (b) When assessing whether a work of applied art reaches the level of creativity necessary for copyright protection, it must be taken into consideration that the aesthetic effect of the design can only provide a basis for copyright protection to the extent that it is not due to its intended use, but is based on artistic creativity. It must further be considered that a level of creativity that, while providing grounds for copyright protection, is still only slight, results in a correspondingly narrow scope of protection for the work in question.

• (c) The claim for payment of (further) appropriate remuneration pursuant to Sec. 36(1) of the Copyright Act (former version), or Sec. 32(1) sentence 3 and Sec. 32(2) sentence 2 and Sec. 32a(1) sentence 1 of the Copyright Act, regarding exploitation of a work of applied art that is susceptible of protection as a design and does not clearly surpass the average design, has no basis with respect to use activities that were performed up until the entry into force, on 1 June 2004, of the Act Reforming the Design Act of 12 March 2004.