Artists Might Like Birkenstocks, but They Are Not Art
They're comfortable, well-known, and made by a company that's been around for centuries. They've been standard hippie wear, part of the fashion world, and everything else in between. They're Birkenstock sandals, and they've been on some of the most famous feet in the world.
But are they art?
After years of court battles, the legal world has provided an answer. Germany's Federal Court of Justice, the highest court in that nation, has ruled that durability and fame do not equal art. The decision was a blow to Birkenstock, which had filed for copyright protection against imitators.
Feet Don't Fail Me Now
With its headquarters based in Linz am Rhein in the western part of Germany, Birkenstock has been producing footwear for 250 years. While they offer everything from clogs to sneakers, the company is best known for its strappy sandals. With success comes competition and, in this case, imitators selling knockoff versions referred to as "fakenstocks."
Targeting Danish retailer Bestseller and fellow German retailers shoe.com and Tchibo, Birkenstock's lawsuit claimed that four of its slip-on sandals were applied art that qualified as intellectual property. The styles were the Arizona, Boston, Gizeh, and Madrid. The suit alleged that such applied art included creations defined by functionality in daily life and aesthetic merits.
Why did Birkenstock take this approach? When determining copyright protection, German law differentiates between art and design. Product design lasts for 25 years after filing. Copyright protection for something deemed a work of art lasts for 70 years after the creator's death.
Some of the sandals named in the lawsuit were designed by Karl Birkenstock and the copyright protection coverage for product design has expired. By having the sandals legally recognized as art, the brands would have copyright protection for the rest of Karl Birkenstock's life and for 70 years after his death.
The suit called for a preliminary injunction ordering Birkenstock's competitors to cease production of the "fakenstocks." It also demanded that they recall and destroy all existing stock.
Toeing the Line
Birkenstock enjoyed early success in a Cologne regional court that agreed with the theory that their sandals were applied art. That decision was overturned by a higher court, which stated that it couldn't recognize any artistic achievement in Birkenstock's footwear.
The case made its way to the Federal Court of Justice. The Justices didn't agree with Birkenstock's claim that their sandals were functional pieces of art. In siding with the decision of the appeals court, they noted that "pure craftsmanship using formal design elements" didn't qualify as art.
The Court went on to say that "works of art need to show a certain amount of personal creativity," while Birkenstock's footwear were examples that showed "design serves a practical purpose." For artistic copyright protection to apply, the Court reasoned, the degree of design must contain some individuality.
In the U.S., it is possible to copyright or patent certain aspects of shoes and clothing, regardless of their status as art or fashion. However, actually obtaining a patent on a clothing item gets complicated quickly. For example, you cannot patent original designs on clothing themselves, but you might be able to patent certain novel combinations of design elements. If you have clothing, shoes, or accessories you wish to patent, contact an intellectual property lawyer to discuss your options.
Birkenstock referred to the decision as a "missed opportunity" for the courts to protect what they consider their intellectual property. For now, their sandals are still functional and beloved, but not art in the eyes of the German legal system.
Related Resources
- A Farewell to Copyrights: Works Entering the Public Domain in 2025 (FindLaw's Law and Daily Life)
- Know the Difference Between Trademarks, Copyrights, and Patents (FindLaw's Intellectual Property Law)
- Trademark Infringement Law FAQ (FindLaw's Learn About the Law)
