Height of creation

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The height of creation , height of design or height of work is a criterion that distinguishes works protected by copyright in copyright law from those services that are not subject to copyright protection, in particular those that are therefore in the public domain . The necessity of such a delimitation in every legal system is based on the fact that the central international agreement on copyright, the Revised Berne Convention , presupposes the term work and only defines types of work. “The examination in individual cases of what is to be regarded as a work” is determined “according to the law of the protected country“, Ie the legal system in which an infringement is to be asserted.

In many legal systems this threshold is summarized under the terms individuality or originality . For German copyright law , Eugen Ulmer coined the special concept of design height in 1959 based on the inventive height established in patent law and at the suggestion of Else Meißner. His concept applied to the applied arts and worked out a special distinction between copyright law and the protection of utility models at the time. Based on this, the case law has transferred the concept to all areas of copyright law and set the threshold depending on the type of work. As a result, the level of design or creation became "an integral part" of the copyright debate; it determined "the lower limit of copyright protection".

On November 13, 2013, the Federal Court of Justice decided that it no longer wanted to adhere to its previous jurisprudence, which had been represented for decades, and that it no longer specifically treated applied arts.

Spiritual historical backgrounds

In various legal traditions, the central evaluations of copyright law are essentially based on two different justifications:

Concept of property under natural law

Rights to published works were initially introduced through privileges of the respective sovereign . Since the 16th century, the printers and publishers recognized each other's rights through their guilds and guilds and tried to protect themselves from reprints of the competition. In the 18th century, the idea of intellectual property established itself . According to her, works are products of intellectual labor, just as things are (as a rule) products of physical labor. If one sees, as part of the older doctrine of natural law ( John Locke in particular was very influential in the USA ), the reason for property protection in the fact that property is a product of labor, it is natural to demand equal treatment of intellectual and physical labor (“intellectual property "). This traditional common law position is paraphrased with the words sweat of the brow or skill and labor . According to her, hard work, that is, a considerable amount of effort, is the basis of copyright protection; Creativity is not required. Consequently, Anglo-Saxon copyright relates to the commercial exploitation rights of a work, while continental European copyright is closely linked to the personal position of the author.

In the German-speaking area, Johann Stephan Pütter presented a theory in 1774 according to which intellectual property has independent features and therefore, according to the nature of the matter, buying a book does not entitle it to reprint. However, he has not yet been able to assert himself.

Personal rights of the author

At the end of the 18th century, following Immanuel Kant's On the Unlawfulness of Book Reprinting (1785) and Johann Gottlieb Fichte's Evidence of the Unlawfulness of Book Reprinting (1793), the view developed that in intellectual works the material object (book) and the embodied content ( Work) fall apart. This view, which goes beyond the mere right of reproduction, fitted with its concept of creation well into the aesthetic of genius of the late 18th century; In 1778 Johann Gottfried Herder wanted to regard every book as an imprint of a living human soul. This is how the theory of copyright as “protection of the personal interests of the author” emerged. Even Georg Wilhelm Friedrich Hegel and Arthur Schopenhauer wore in the 19th century to the development of intellectual property law at the author. Philipp Allfeld brought the various strands of theory together to form the monistic theory that is still prevalent in continental Europe today , according to which aspects of property law and personality law are "inseparably interwoven" in a uniform copyright.

Since 1936, made use of the Austrian Supreme Court of a philosophically-inspired standard justification, according to the product of the human mind then a peculiar intellectual creation , whether if it is the result of creative intellectual activity, that his peculiarity that distinguishes it from other works, from the personality of its Has experienced the creator; this personality must be expressed in him in such a way that it imprints the stamp of uniqueness and belonging to its creator on the work, i.e. a formation that flows from the innermost essence of intellectual creation is present (1990).

The height of creation in German copyright law

A work within the meaning of Section 2 of the Law on Copyright and Related Rights (UrhG) must have a concrete, "perceptible design", i.e., beyond an idea, it must already be so concretized that it can be perceived with the human senses, and it must follow Section 2, Paragraph 2 of the Copyright Act is a “personal spiritual creation”. On the one hand, this criterion excludes accidental occurrences, found objects and animal products, and it requires an individuality of the work that can be attributed to the creator .


This individuality does not refer to the person to whom the work can be assigned, but to whether the creation has individual traits.

The requirement of individuality is particularly evident in the case of new works derived from another work. The distinction between processing according to § 23 UrhG, which may only be published on the template with the consent of the copyright holder, and free use according to § 24 UrhG, which does not violate any rights of the template, is opposed to the "fading of the individual features" of the template the new plant. From this it can be inferred that the requirements in German law for individuality and the height of creation must not be too low, because since both the original and the new work must be independent works, there would hardly be any scope for individuality to be seen with only minor requirements, which could fade. On the other hand, German case law on copyright has always recognized that no excessive obstacles to copyright protection may be set up. The so-called Small Coin of Copyright, which was already known in 1921, is also protected.

In Germany, the effort and cost of creating it are of no significance for the character of a creation and thus for copyright protection. The purely craftsmanship, which anyone with average skills could also achieve, regardless of whether it is based on appreciable diligence and solid skill, is outside the scope of protection, emphasizes German jurisprudence (according to the Berlin Regional Court in a decision on Btx graphics). In a more recent decision by the Hamburg Higher Regional Court on mobile phone logos, it is also stated that it does not matter whether the production of the logos from individual image points (“pixel by pixel”) was possibly time-consuming.

Creation height since 2013

In the birthday train judgment , the Federal Court of Justice gave up its previous case law. The required level of creativity has now been reached in works “which, in the opinion of those circles who are receptive to art and who are somewhat familiar with art views, [justify] speaking of an artistic achievement .” And: “In addition, it must be noted that a copyright protection justifying , but at the same time the low level of design leads to a correspondingly narrow area of ​​protection for the work in question. ”At the same time, a lower limit has been defined for the small coin . The decision was made in proceedings on the distinction between applied and non-purposeful art .

Subject to further changes in the legal situation in fields outside of the applied arts, the previous principles continue to apply: The requirements for visual, non-purposeful art, music and literary works are unproblematic. Here the small coin is already considered to be protected. In the case of music , only noises , individual chords and simple scale exercises are not covered by the protection. In a specific individual case, however, the Regional Court of Munich I believed that a two-bar tone sequence in the refrain of a pop song did not stand out in a peculiar way from generally familiar compositional means and principles or from a previously known treasure trove of forms and was not shaped by the handwriting of its creator. Similar low criteria are applied to the visual arts and literature. Since the EEC directive on the term of protection of copyright from 1993 and its implementation in the UrhG 1995, only minor requirements have been placed on photographic works .

The jurisprudence applied special criteria and, associated with this, a significantly higher threshold for the height of creation to works of language that are not literary in character, and technical-scientific representations.

Linguistic works of a non-literary nature

On the basis of a decision on operating instructions, the Federal Court of Justice had developed the criteria according to which texts are to be judged that are “not to be regarded as purely literary works”. He raised the requirements for the lower limit of protection here: the average, the "craft, everyday and banal" should not be protected. Rather, the threshold of the height of creation should only be reached when the design activity “clearly surpasses the average design”. The reasoning was based in particular on the fact that a wide range of forms must be available to everyone in the case of utility texts and should not be assigned to an individual author by copyright.

Technical and scientific presentations

Representations in technology and science are often strongly determined by norms and habits. Therefore, there is only a small amount of creative leeway left for the respective designer. If this leeway is not exercised, as is the case with technical drawings that are completely based on standards, then copyright protection cannot be considered. On the other hand, due to the limited possibilities, even a slight individuality is sufficient, as can already exist, for example, in exploded drawings in the object to be represented with particularly adapted three-dimensionality and shadows. In the case of topographic maps, where the cartographer has only a very limited scope for design due to the requirements of the lifelike cartographic representation of the earth's surface, the Federal Court of Justice usually accepts a work and grants protection because the selection of the elements to be mapped, the generalization in self-created Categories and the handling of the deviations from the real state required by the scale of the map make use of the design leeway (for more details see rights to geographic information ). Plastic representations, such as medical models or those for science lessons, are also regarded as protected if they go beyond the purely handcrafted and banal.

It should be noted that the jurisprudence in the field of technical and scientific representations and scientific or technical texts largely excludes protection of the content and only the form and type of collection, classification and arrangement of the material are regularly considered for copyright protection. The reason is based on the public's interest in the free exchange of scientific ideas and the flow of information, which is more important than with other forms of cultural goods. Scientific and political thoughts should be "the subject of free intellectual debate" and should not be "monopolized through copyright law". In addition, it is more necessary in science than in other areas to utilize other people's thoughts. In addition, scientific and technical documents are strongly characterized by common symbols, formulas and linguistic expressions that should be available to everyone.

Special cases

The Black Square (1915) by Malevich

While in the pure visual arts (sculpture, painting and graphics) the protection of the small coin and thus low requirements are recognized, individual art movements of the modern era pose problems for the copyright holder, such as the suprematism of Kasimir Severinovich Malevich (whose works, however, are in practice are now in the public domain due to expiry of the deadline ). The dilemma of copyright lawyers formulated Loewe Home: The protection of the monochrome image or the blank sheet is not enough so far that others from making the same images or leaves is to use the same color or the void could be prohibited; on the other hand, the artist must be able to prevent the reproduction and distribution of his work, for example by selling postcards. Similar problems arise with ready mades , in which an artist selects found objects and charges them with meaning.

In the architecture , the definition is difficult. Although the problem of their depiction by third parties is largely mitigated for the exterior view of buildings thanks to the freedom of panorama , there are always disputes between builders who want to change buildings protected by copyright, but who are opposed to the claims of the architect or his heirs. Residential buildings can also be eligible for art protection if and to the extent that they reveal an artistic work in the architect's work . The district court of Düsseldorf refused protection to a row house, while the district court of Leipzig found a toilet facility at motorway service stations worthy of protection. In itself, architectural works are supposed to stand out from the crowd of everyday work , but it is rather rare that the courts have denied buildings the property of being protected by copyright. This results in "uncertainty in the jurisprudence [...], which is reflected in works of architecture in arbitrarily acting, no recognizable systematic decision reasons".

In the field of applied art, from which the development of the height of creation began, after the change in case law in 2013, only minor requirements are placed on the work character of an achievement.

In 1986, following a decision by the Cologne Higher Regional Court, the ARD logo did not reach the required level of creation and is therefore not protected by copyright

Only very simple company logos should therefore continue to be unprotected by copyright. This applies in particular to logos that have a typographic design in the form of lettering that is only supplemented by a few simple design elements. The case law has traditionally been reluctant to protect logos and has explicitly denied protection for ARD -1.

SED emblem : according to LG Hamburg 2004 not protected by copyright because it is composed of previously known motifs.

Since only the individual performance of the individual is accessible to copyright, in the case of the combination of established and independently unprotected elements, copyright protection will only continue to come into consideration if an artistic character can be recognized in the connecting and added parts themselves.

Protection below the height of creation

Even if the threshold of the height of creation is not reached, protection from related property rights , the ancillary copyrights , can result. This applies in particular to photographs that are not photographic works . According to § 72 UrhG, only a shortened term of protection applies to them . All photographs are therefore protected by copyright or at least by ancillary copyright.

According to a judgment of the Federal Court of Justice from 1989, reproduction photographs only represent a reproduction of the original and not an in-house processing, and ancillary copyrights according to § 72 UrhG are not to be asserted. More recent jurisprudence, on the other hand, grants, for example, photographic reproductions of paintings an ancillary copyright, from which injunctive relief can be obtained.

Outside and in addition to copyright and related property rights, there are other forms of industrial property protection . In particular, a registered design can develop claims similar to copyright. The depiction of an Intercity-Express for commercial purposes, which is protected under the Design Act , was viewed by the Federal Court of Justice as unauthorized use and was also not permitted as a quotation . The Olympic rings and other attributes of the Olympic Games are subject to special legal protection in many countries around the world, for example the law on the protection of the Olympic emblem and the Olympic designations in Germany .

If none of the commercial property rights exist, for example in the case of works in the public domain or services below the level of creation, to which no other property right is applicable, protection against the assumption of services due to unfair competition can still be considered - but only in the commercial area . For this, it is necessary that the service taken over has a "competitive characteristic" and that there are special circumstances that make the takeover unfair. Examples would be the unauthorized use of templates, betrayal of secrets, bribery, the exploitation of someone else's reputation or deception of origin.

Development of case law

The concept of individuality as a prerequisite for copyright protection led jurisprudence and jurisprudence to search for a definition from the start. The concept of the small coin had emerged as early as 1921 , according to which not only the large, generally recognized work is worthy of protection, but also the small coin of creative creativity. Particular problems arose from the relationship between copyright and design law, since both in applied art could relate to the same creations, but had different requirements. When the legal conviction developed that the design would replace copyright in its field of application in applied art, Eugen Ulmer first introduced the concept of the height of creation “as a quantitative element of individuality” in 1959.

Concept of levels of protection

Based on this, the case law developed a concept of various gradual stages:

  • the craftsmanship of an average designer was not protected,
  • the design right presupposed a performance that went “not too close” above the average and
  • Only when, in addition, there was a “significant creative superiority” to the average activity of a designer and a “considerable aesthetic excess” was achieved over and above the design required by the purpose, did copyright take effect.

In a decision of January 26, 2005, the Federal Constitutional Court (BVerfG) reported on the current status of the discussion. The comparatively long quote from the judgment - as an official work in the public domain - is intended to give an impression of the reasoning of the copyright holders:

The running eye by Franz Zauleck

Based on the definition of the copyright work as a personal intellectual creation (Section 2 (2) UrhG), the Federal Court of Justice has consistently ruled that a certain degree of design should be required for the existence of the work property (cf. the descriptions by Loewenheim in: Schricker, Copyright, 2. Edition. 1999, § 2 Rn. 32 ff .; Dreyer in: Dreyer / Kotthoff / Meckel, Copyright, 2004, § 2 Rn. 53 ff., Which speaks of "Creation Height"). He sets a relatively low limit for almost all types of work, so that, as a rule, works with a low design height (the so-called small coin) enjoy copyright protection. This also applies, among other things, to works of fine art (cf. BGH, GRUR 1995, p. 581 <582> - "Silberdistel").

According to the case law of the Federal Court of Justice, however, something else applies in the field of applied arts, i.e. for objects of daily use with artistic design (see Nordemann / Vinck in: Fromm / Nordemann, Copyright, 9th edition. 1998, § 2 marginal number 21; Loewenheim / Vogel §2 Rn. 7 in: Ulrich Loewenheim: Handbook of Copyright . Beck 2010, Rn. 156) and thus for works that are not only intended for viewing, but also serve a purpose (cf. BGH of November 8, 1989, GRUR 1990; so also Nordemann / Vinck in: Fromm / Nordemann, Copyright, 9th edition. 1998, § 2 Rn. 52; Schack, Copyright and Copyright Contract Law, 2nd Edition. 2001 Rn. 202; Loewenheim / Vogel §2 Rn. 7 in : Ulrich Loewenheim: Handbook of Copyright . Beck 2010, Rn. 156). Here, the case law places higher demands on the level of design and demands for the quality of the work and thus for copyright protection a clear superiority to the average design (see BGH of November 8, 1989, GRUR 1990, as well as BGHZ 138, 143 <147> - "Les-Paul -Guitars ").

Is established that with the possibility of the given here design protection under the Designs Act. The Federal Court of Justice sees no essential difference between copyright and design law, but only a gradual difference (cf. BGH, GRUR 1995, p. 581 <582> - "Silberdistel"; also Loewenheim / Vogel §2 marginal number 7 in: Ulrich Loewenheim : Handbook of Copyright . Beck 2010, Rn. 157; Eichmann / v. Falckenstein, Design Law, 2nd Edition. 1997, General Rn. 19; Nirk / Kurtze, Design Law, 2nd Edition. 1997, Introduction Rn. 44 ff.) . However, since a design capable of designing a design must stand out from the unprotected average design, the purely craft-like and everyday, an even further distance is to be demanded for the copyright protection. According to this, copyright protection presupposes a higher degree of creative uniqueness than objects that can only be designed, whereby the limit should not be set too low (cf. BGH of November 8, 1989, GRUR 1990).

The literature supports this view with the consideration that the uniform concept of work in § 2 UrhG in applied art is broken by design protection in accordance with the Design Act as a lex specialis (Nordemann / Vinck in: Fromm / Nordemann, Copyright, 9th edition . 1998, § 2 Rn. 21, 52) and the formal requirements of the Design Act - registration for registration and payment of registration fees - could be circumvented if copyright protection were also granted for the "Kleine Münze" (cf. Dreyer / Kotthoff / Meckel, Copyright, 2004, § 2 marginal number 59). Incidentally, in the case of works of applied art, it is a matter of preventing obvious design elements from being monopolized (see Schack, Copyright and Copyright Contract Law, 2nd edition 2001, marginal number 207).

The constitutional complaint concerned the drawing of a human eye walking on two legs, which the Berlin graphic artist Franz Zauleck had created for the Design Center North Rhine-Westphalia. Regional court (LG) and higher regional court had refused protection. The Federal Constitutional Court rejected the complaint with reference to the design law substructure in the field of applied arts.

Criticism of the different demands on the height of creation

The different setting of the required level of creation in different types of work and in particular in the applied arts by the jurisprudence has met with diverse criticism in the legal literature. Due to the uniform concept of work in copyright law, the demand for a uniform work character and thus for uniform requirements for individuality was raised. Also from the European legal regulation, as in the term of protection Directive , the Database Directive 96/9 / EC and the Copyright Directive can be seen could be close to a tendency towards a single low protection threshold.

In the literature, at least since the 1980s, the demand for a change in case law has been made. Against the argument of the suppression of copyright by the design law, arguments of legal dogmatics were used to object that the legislature in the revision of the Design Act of 2003 "wanted to create an independent industrial property right that is not just a derivative of an existing property right. In this respect, the implementation of the directive [should] remove the close relationship between design law and copyright law. ”It was concluded from this that the two rights would stand side by side and that there would be no competition. Copyright work and design law performance "differ [...] not in degree, but qualitatively ". This was countered by the fact that the highest court rulings had maintained their previous practice in decisions made since then and had not taken up this aspect of the justification for the law.

Outside of the applied arts, it was argued that individuality should stand as “a requirement for the character of the work in itself and without the additional criterion of the level of design, and should distinguish it from the everyday, routinely produced and with the minimum of self-imprint”. The design height can then remain limited to the field from which it originally comes.

However, it was also problematized with applied art that 97.5% of all design achievements remain unprotected, while in photography all achievements are protected. That would not correspond to the aim of the copyright law and the tendency of the EU standardization.

But after the Copyright Directive and its amendment of 1993 continued to uphold the requirement of individuality for copyright protection, a new, uniform reference point for all types of work was sought in the legal literature. It was suggested to build on the scope of the respective type of work: "The greater the design scope for the respective work, the more likely it is to affirm copyright protection."

On the other hand, there was a counter-tendency in parts of the literature that the Kleine Münze wanted to remove completely from copyright law and instead place it under competition law or a general ancillary copyright law to be created. The reason given is that one law should not be equally responsible for world literature and art on the one hand and address books and other utility texts and, in particular, the latter should not enjoy the comprehensive protection of 70 years after the author's death.

Change of case law 2013

In November 2013, German jurisprudence gave up the distinction between the threshold for copyright protection: the former design , now referred to as registered design , no longer superseded copyright since a new version in 2004 , but stands next to it. The different requirements: pure deviation from previous drafts in the design and an artistic excess in the form of individuality in copyright law are recognized and confirmed. The Federal Court of Justice has thus expressly revised its previous case law. On the other hand, the BGH rejected the assumption that copyright or European law would result in a uniform definition of work for all types of work. The judgment therefore only relates to the position of copyright law on protected design in the field of applied art. Whether the classification of the height of creation in other types of work will also change as a result of this decision, the jurisprudence will only have to specify in the coming period.

The decision met with great skepticism in the literature. The demarcation downwards is still necessary, but the term art is in principle unsuitable for this. It cannot be legally defined and that also applies if one refers to a “circle that is receptive to art and reasonably familiar with art views”.

The judgment is further accused of not considering the consequences and leading to great uncertainty. In particular, there is the risk that “any kind of art, no matter how banal, will potentially experience copyright protection.” The BGH had seen this and wanted to counter this risk on the legal side by restricting the scope of protection; but this is inadequate because the protection of the “tiny coin” can hardly be justified in view of the far-reaching legal consequences of the granting of protection.

The last-mentioned thought is taken up in an even stronger form if the decision is described as "not very helpful" in the GRUR practice . It favored “the inflation of copyrights, of all things, in the border area of ​​the small coin”, ie in the area where the delimitation is particularly important because of the major consequences. The BGH misunderstood the relationship between copyright and design law.

“It is therefore precisely not justified, with reference to the fact that, according to the will of the legislature , design protection is no longer just a minus to copyright, to protect design achievements according to the standards of copyright, on the contrary. Design services are protected according to the German Design Act, which is not subject to, but rather independently, copyright. In individual cases this does not rule out a double qualification , but by no means requires equal treatment with works of the liberal arts, which in the area of ​​application of the small coin , unlike design achievements, would be defenseless. "

It is precisely this double qualification as cumulative property rights that is viewed as a particular weakness of the decision: "To simultaneously grant design patents and copyrights for the same design leads to nightmarish conditions with regard to legal certainty ." For future case law, the decision of the BGH should be understood as follows that “a mere creative achievement in the sense of industrial design” is not sufficient for copyright protection, even if it works well. "The design achievement cannot be differentiated from the artistic achievement according to purely technical (design) characteristics."

Even years after the basic decision of the Federal Court of Justice, the exact effects on the threshold for reaching the height of creation are controversial in the legal sciences. In the case law, reference was made to the judgment of the BGH several times, but it was not used for the specific assessment of the protectability of representations of applied art. A dissertation published at the beginning of 2017 on the problem came to the conclusion that the thesis that the departure from the step theory had lowered the threshold for reaching the height of creation had to be rejected, and “the protective threshold [could] even be higher than before”.

Theory and Practice in Jurisprudence

A comprehensive analysis of the jurisprudence of German courts on Schöpfungshöhe and Kleiner Münze since 1879, however, suggests that the criteria developed in the case law and repeatedly mentioned in the reasons for the judgment for the distinction between copyright works and non-protectable services are indeed cited by the courts but not form the basis of their decisions. In his analysis, copyright professor Marcel Bisges comes to the conclusion that the German courts, contrary to the law and their own reasons, decide almost exclusively on economic considerations. The work property is always affirmed if there is a high production cost, a high economic value or a prominent author. Other factors do not play a statistically significant role.

He particularly highlights a subgroup of the judgments he has examined: his study contains 15 judgments that deal with the copyright protection of furniture . In 14 cases, the furniture, the protection of which was controversial , had been designed by prominent designers ; only one office furniture system came from an anonymous development team at a furniture manufacturer. The judgments directly reflect the prominence of the designers, because the 14 drafts of the well-known authors were awarded the work quality and thus protection by various courts, only the unknown development team was denied it.

Bisges comes to the conclusion that the entire German jurisprudence on the height of creation is in truth based on reasons other than those mentioned in the reasons for the judgment. It is not the creativity or artistic value of a performance, but only the economic aspects associated with it that are decisive, but they are never given as a reason in the judgments, since such a weighing deviates completely from the legal regulation. Bisges states: "[Y] every judgment, which in truth is based on reasons other than those given in its justification, [is] unconstitutional and therefore unlawful for that very reason."

Corresponding regulations outside of Germany

Even if the term `` Schöpfungshöhe '' is mostly used in Germany, the statements on the character of a work and the threshold of individuality and originality between creations protected as a work and services not covered by copyright essentially also apply to other countries. The law of Austria and Switzerland is largely similar to German copyright law.


In Austria, too, the height of creation is used as the lower limit of works protected by copyright. However, the requirements are set uniformly across all types of work. The Supreme Court described the principle when it stated in 2001 to protect a website :

The prerequisite for protection, however, is that the performance is individually peculiar: It must stand out from the everyday, common, and usually produced. In the case of the creator of the work, personal traits - in particular through the visual design and the intellectual processing - must come into their own (ecolex 1995, 910 = MR 1996, 107 = ÖBl 1996, 56 = WBl 1995, 514 - arrow representation with further references).

Commercial graphics are therefore only protected by copyright if they are individual and original in this sense (MR 1996, 241 [Walter] = ÖBl 1996, 292 - Hier wannt mwN). This also applies to the layout of a website: its copyright protection assumes that it is an individual creation.

Purely manual, routine work that is within the framework of the everyday and usual is not protected because it is limited (for example) to the standard layout of the creation software and does not use any individual design elements.

Originally, the Austrian case law also differentiated the standard for the height of the work necessary for protection, as in Germany, according to the purpose of use, but the Supreme Court rejected this case law in the course of the 1980s and since the beginning of the 1990s there has been a uniform requirement for the height of the work, regardless of the purpose

“What purpose the work serves is irrelevant; even a mere use does not harm. The only decisive factor is the nature of the work (ÖBl 1997, 38 - Buchützen). Doctrine and jurisprudence unanimously affirm that under "works of the fine arts" in the sense of § 3 Paragraph 1 UrhG, those whose means of expression is graphics - even if only so-called "commercial graphics" - is unanimously affirmed (ÖBl 1992 , 181 - Kalians-Lindwurm; RIS-Justice RS0076187; Kucsko, Intellectual Property 1108). There are no higher demands to be made of their work character than those of other types of work "

- Austrian Supreme Court : OGH, decision of October 19, 2004, 4 Ob 182 / 04z

The requirements for copyright protection are now that a work can be objectively identified as art and that it is sufficiently different from other works.


In Switzerland, too, there is a threshold that works have to cross for copyright protection. The federal law on copyright and related rights defines in Art. 2 :

"Works are, regardless of their value or purpose, intellectual creations of literature and art that have an individual character."

Since 2020, photographic reproductions of three-dimensional objects have also been defined as independent works.

This means that the lower limit is set uniformly for all types of work. However, the effects of falling below the threshold are more important in Switzerland than in Germany or Austria, because Switzerland has no ancillary copyrights for scientific editions, posthumous works , photographs below the threshold of a photograph or databases . A performance from these areas that is not recognized as a work is therefore directly in the public domain.


Luxembourg has a relatively low threshold for the height of creation and is based on the height of creation in Belgium , the Netherlands or France . Nor is there any distinction made between the provisions of the works. Applied arts for industry are explicitly mentioned by law.

UK, USA and Canada

In Great Britain and Canada , the prevailing opinion is based on the doctrine of the sweat of the brow , which copyright law grants simply by investing time and effort in creating a work. With a quote from Judge J. Peterson from the decision of the University of London Press v. University Tutorial Press of 1916 states: "What is worth copying [...] is also worth protecting." This case law goes back to the decision of Walter v. Lane. from 1900, in which a journalist was granted the copyright to his verbatim transcripts of speeches by a politician. Even after the Copyright Act of 1911 first defined originality as a requirement, the courts did not change their interpretation, the decision of 1900 continues to be cited regularly.

In the United States law one speaks of the lack of originality ( lack of originality ), which is a copyright excludes. The view that a certain degree of originality ( modicum of originality ) is necessary, the Supreme Court 1991 in its decision Feist Publications, Inc., v. Rural Telephone Service Co., Inc. (499 US 340) and thus rejected the previous application of the sweat of the brow thesis in the USA for the future. The court argued with the United States Constitution that, according to Article I Section 8 of the Constitution, copyright serves "to promote the advancement of science and useful arts" and therefore ideas and information are not protected. The decision is seen in the literature as a milestone in the interpretation of the term originality . Accordingly, the identification of an author presupposes that creativity is applied in the work . The compilation of information without an independent contribution - as in the decided case in a telephone book - is therefore not protected by copyright.

Canadian jurisprudence has changed. Originally in the British tradition, the Federal Court of Appeal decided in 1998 in Tele-Direct in accordance with the arguments from the USA in Feist and denied the copyright protection of a telephone directory. In 2002 the same court wrote in CCH Canadian v. Law Sociey of Upper Canada, however, that

"The crucial requirement for a finding of originality is that the work be more than a mere copy"

"The decisive requirement to determine originality is that the work is more than a mere copy"

- Federal Court of Appeal : CCH Canadian v. Law Sociey of Upper Canada

and returned to the British tradition. This has been an established principle ever since.


In India, older decisions about the height of creation followed the sweat of the brow principle, as applied in Great Britain. More recent decisions by Indian courts such as the Delhi High Court in 2014 and the Supreme Court , however, denied the protection as guaranteed in the Sweat of the Brow. Instead, elements of the Modicum of Creativity , the US approach, or the Skill and Judgment Test , as used in Canada, were used. A legal definition or a basic judgment does not yet exist (status: 08/2015).


  • Marcel Bisges: The small coin in copyright law . Nomos 2014, ISBN 978-3-8487-1775-0 .
  • Eva-Irina von Gamm: The problem of the level of design in German copyright law . also dissertation Munich 2002. Nomos, 2004, ISBN 3-8329-0577-4 .
  • Jane C. Ginsburg: The Concept of Authorship in Comparative Copyright Law . Columbia Law School, Public Law and Legal Theory Research Paper Group, 2003 (also online: Concept of Authorship )
  • Ulrike Koschtial: On the need to lower the design height for works of applied art in German copyright law. In: GRUR - Commercial legal protection and copyright. Vol. 2004 (106), issue 7, pp. 555-560.
  • Alexander Peukert: The public freedom - concept, function, dogmatics . Mohr Siebeck, 2012, ISBN 978-3-16-151714-3 .

Web links

Commons : Creation height  - album with pictures, videos and audio files
Wiktionary: Creation height  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. Schulze §2 Rn 8 in: Dreier / Schulze: Copyright Law, Munich 2008, ISBN 978-3-406-57758-1 .
  2. Nordemann §2 Rn 8 in Fromm / Nordemann: Copyright . Kohlhammer 2008, ISBN 978-3-17-019771-8 .
  3. a b Eugen Ulmer: The protection of industrial design. In: GRUR Ausl. , 1959, issue 1, p. 1 [2].
  4. a b c Gerhard Schricker : Farewell to the level of design in copyright law. In: Jürgen Becker , Peter Lerche , Ernst-Joachim Mestmäcker : Wanderer between music, politics and law - Festschrift for Reinhold Kreile on his 65th birthday . Nomos, 1994, ISBN 3-7890-3481-9 , pp. 715-721.
  5. a b Nordemann §2 Rn 30 in Fromm / Nordemann: Copyright . Kohlhammer 2008, ISBN 978-3-17-019771-8 .
  6. a b c Federal Court of Justice: judgment of the 1st civil senate of November 13, 2013 - I ZR 143/12 - birthday train
  7. Manfred Rehbinder: Copyright . CH Beck, 2010, ISBN 978-3-406-59768-8 , §3, II, III
  8. Manfred Rehbinder: Copyright . CH Beck, 2010, ISBN 978-3-406-59768-8 , §3, IV, Rn. 21
  9. Loewenheim / Vogel §2 Rn. 7 in: Ulrich Loewenheim: Handbook of Copyright . Beck 2010, ISBN 978-3-406-58518-0 .
  10. Johann Gottfried Herder : On the recognition and feeling of the human soul. Remarks and dreams . In: Bernhard Suphan, Johann Gottfried Herder (Ed.): Complete works . tape 8 . Weidmann, Berlin 1892, p. 165–333, here p. 208 f . Quoted from: Fotis Jannidis among other things: Speech about the author to the educated among his despisers. Historical models and systematic perspectives . In: IASL online . ISSN 1612-0442 ( at footnote 6. [accessed March 25, 2006]).
  11. Manfred Rehbinder: Copyright . CH Beck, 2010, ISBN 978-3-406-59768-8 , §3, V
  12. Loewenheim / Vogel §2 Rn. 8-10 in: Ulrich Loewenheim: Handbook of Copyright . Beck 2010, ISBN 978-3-406-58518-0 .
  13. ^ Gerhard Laga: Copyright on the Internet . Lecture from September 16, 1998. ( Online [accessed March 25, 2006]).
  14. Loewenheim §2 Rn 20, in: Loewenheim / Dietz / Schricker: Copyright, Beck 2010, ISBN 978-3-406-59033-7 .
  15. Schulze §2 Rn 6 ff., In: Dreier / Schulze: Copyright Law, Beck 2008, ISBN 978-3-406-57758-1 .
  16. Loewenheim §2 Rn 23 ff., In: Loewenheim / Dietz / Schricker: Copyright, Beck 2010, ISBN 978-3-406-59033-7 .
  17. von Gamm, p. 32.
  18. a b Schulze §2 Rn 20, in: Dreier / Schulze: Copyright Law, Beck 2008, ISBN 978-3-406-57758-1 .
  19. Alexander Elster: Commercial legal protection, de Gruyter, 1921.
  20. LG Berlin, judgment of May 6, 1986, 16 O 72/86 - winter landscape. In: netlaw.de. Strömer Rechtsanwälte, accessed on February 27, 2021 .
  21. OLG Hamburg, judgment of February 25, 2004, Az. 5 U 137/03, JurPC Web-Doc. 239/2004 - "Handy-Logos I"
  22. Dreier §2 Rn 25 ff., In: Dreier / Schulze: Copyright Law, Munich 2008, ISBN 978-3-406-57758-1 .
  23. Regional Court Munich I, judgment of November 7, 2002, Az. 7 O 19257/02, printed in: ZUM 2003, 245
  24. Dreier §2 Rn 30, in: Dreier / Schulze: Copyright Law, Munich 2008, ISBN 978-3-406-57758-1 .
  25. a b BGH, GRUR 1993, 34 [36] - operating instructions
  26. Vogel §2 Rn 18 in: Ulrich Loewenheim: Handbook of Copyright . Beck 2010, ISBN 978-3-406-58518-0 .
  27. Loewenheim §2 Rn 35, in: Loewenheim / Dietz / Schricker: Copyright, Beck 2010, ISBN 978-3-406-59033-7 .
  28. a b Schulze §2 Rn 28, in: Dreier / Schulze: Copyright Law, Munich 2008, ISBN 978-3-406-57758-1 .
  29. ^ BHG GRUR 1965, 45 [46] - city ​​map
  30. BHG GRUR 1988, 816 [817] - Topographical Maps
  31. Nordemann §2 Rn 87 f. In: Fromm / Nordemann: Copyright . Kohlhammer 2008, ISBN 978-3-17-019771-8 .
  32. Kammergericht Berlin: Decision 24 W 21/14 of March 12, 2014 ( memento of March 31, 2016 in the Internet Archive ) retrieved from the server of the Federal Ministry of the Interior
  33. von Gamm, p. 98 f.
  34. BGH, GRUR 1995, 581 [582] - Silberdistel
  35. Loewenheim §2 Rn 150, in: Loewenheim / Dietz / Schricker: Copyright, Beck 2010, ISBN 978-3-406-59033-7 .
  36. a b Kai Kolwitz: Change prohibited? . In: Real Estate Management. 12/2004. Haufe, ISSN  1614-1164
  37. OLG Hamm Construction Law 1981, 300
  38. Loewenheim §2 Rn 151 ff., In: Loewenheim / Dietz / Schricker: Copyright, Beck 2010, ISBN 978-3-406-59033-7 .
  39. Christine v. Schildt-Lutzenburger: The copyright protection of buildings . At the same time dissertation at the University of Freiburg. Munich, Utz 2004, ISBN 3-8316-0370-7 , p. 217.
  40. Schulze in Dreier, UrhG, 2004, § 2 marginal no. 166
  41. OLG Cologne, GRUR 1986, 889
  42. Lack of copyright protection for SED emblem, judgment of the Hamburg Regional Court of December 10, 2004 - 308 O 207/04, In GRUR-RR, 2005, issue 4, p. 106 ff.
  43. see. BGH of 8 November 1989, Az. I ZR 14/88 (Reasons Section III no. 3), Bible Reproduction
  44. see judgment LG Berlin v. May 31, 2016, Az. 15 O 428/15.
  45. See judgment of the Federal Court of Justice of December 20, 2018, Az. I ZR 104/17 , Museumfotos
  46. Bernhard Knies: LG Berlin: Reproduction photographs can enjoy copyright protection as photographs. Rechtsanwälte Knies & Albrecht, February 1, 2017, accessed on October 24, 2019 .
  47. Moritz Merzberg: The photographed ICE - legal problems with the depiction of designs . On the right of the picture, July 18, 2011.
  48. Federal Court of Justice: Judgment of April 7, 2011, Az. I ZR 56/09 (PDF; 986 kB).
  49. a b Dreier Einl. Rn 37, in: Dreier / Schulze: Copyright Law, Munich 2008, ISBN 978-3-406-57758-1 .
  50. Schulze §2 Rn 29, in: Dreier / Schulze: Copyright Law, Munich 2008, ISBN 978-3-406-57758-1 .
  51. OLG Schleswig GRUR 1985, 289 [290] - clay figures
  52. BVerfG, decision of January 26, 2005, Az. 1 BvR 1571/02 , see also GRUR 2005, 410 - "Laufendes Auge"
  53. So Loewenheim §2 Rn 33, in: Loewenheim / Dietz / Schricker: Copyright, Beck 2010, ISBN 978-3-406-59033-7 with many other references.
  54. Schulze §2 Rn 32 in: Dreier / Schulze: Copyright Law, Munich 2008, ISBN 978-3-406-57758-1 .
  55. Loewenheim §2 Rn 33, in: Loewenheim / Dietz / Schricker: Copyright, Beck 2010, ISBN 978-3-406-59033-7 .
  56. Sabine Zentek: Design-specific reductions in the copyright design height - Don't be afraid of the BGH. In: Competition in Law and Practice. Vol. 2010 (56), issue 1, pp. 73-80.
  57. Bundestag printed paper 15/1075 (PDF; 798 kB) of May 28, 2003, p. 29.
  58. Loewenheim §2 Rn 34, in: Loewenheim / Dietz / Schricker: Copyright, Beck 2010, ISBN 978-3-406-59033-7 .
  59. Von Gamm, p. 233.
  60. Nordemann §2 Rn 147, in: Fromm / Nordemann: Copyright . Kohlhammer 2008, ISBN 978-3-17-019771-8 .
  61. Nordemann §2 Rn 150, in: Fromm / Nordemann: Copyright . Kohlhammer 2008, ISBN 978-3-17-019771-8 .
  62. Schulze §2 Rn 23, in: Dreier / Schulze: Copyright Law, Munich 2008, ISBN 978-3-406-57758-1 .
  63. Schulze §2 Rn 33, in: Dreier / Schulze: Copyright Law, Munich 2008, ISBN 978-3-406-57758-1 .
  64. Loewenheim §2 Rn 40, in: Loewenheim / Dietz / Schricker: Copyright, Beck 2010, ISBN 978-3-406-59033-7 with further references.
  65. Ahlberg in Beck'scher online comment on copyright , § 2 no. 110 ff. (As of February 1, 2014)
  66. a b Stephan Szalai: Comment on BGH, judgment of November 13, 2013 - I ZR 143/12 - birthday train. In: ZUM 2014, pp. 231–234.
  67. a b c Christian Klawitter: Copyright protection for design services: U-turn or margin correction? In: GRUR-Prax 2014, pp. 30–32.
  68. Till Kreuzer: Birthday train: How the BGH extends the design protection . on: irights.info , January 18, 2014.
  69. Lukas Mezger: The threshold for works of applied art in German and European copyright law . V&R unipress, Göttingen 2017, ISBN 978-3-8471-0696-8 , p. 144 ( vr-elibrary.de [PDF]).
  70. Bisges, Kleine Münze , 2014, p. 186.
  71. a b c Bisges, Kleine Münze , 2014, p. 271 ff.
  72. Bisges, Kleine Münze , 2014, p. 224 ff.
  73. Bisges, Kleine Münze , 2014, p. 231 ff.
  74. Bisges, Kleine Münze , 2014, p. 233 ff.
  75. Bisges, Kleine Münze , 2014, p. 261 f.
  76. ^ Supreme Court decision of April 24, 2001, Az. 4 Ob 94 / 01d - "telering.at"
  77. a b Walter §51 Rn 9 in: Ulrich Loewenheim: Handbook of Copyright . Beck 2010, ISBN 978-3-406-58518-0 .
  78. Alexandra Pühringer: The copyright protection of advertising according to Austrian and German law. CH Beck, Munich 2002, ISBN 3-406-49366-1 , p. 49 f .
  79. Quoted from the Legal Information System of the Republic of Austria , document number: JJT_20041019_OGH0002_0040OB00182_04Z0000_000 , accessed on June 14, 2010.
  80. Martin Steiger: Copyright: Overview of the new photo protection in Switzerland . On: Steigerlegal.ch , January 10, 2020.
  81. Hölty §52 Rn 10 in: Ulrich Loewenheim: Handbook of Copyright . Beck 2010, ISBN 978-3-406-58518-0 .
  82. Hölty §52 Rn 62 in: Ulrich Loewenheim: Handbook of Copyright . Beck 2010, ISBN 978-3-406-58518-0 .
  83. Jean Lux Putz: The Luxembourg Copyright Law - an introduction. (PDF) p. 3 , accessed on January 13, 2018 .
  84. quoted from: Abraham Drassinower: Sweat of the Brow, Creativity, and Authorship: On Originality in Canadian Copyright Law ( Memento of March 26, 2012 in the Internet Archive ) (PDF; 190 kB). In: University of Ottawa Law & Technology Journal. Volume 1 (2003-2004), p. 105 [122].
  85. Walter v. Lane, [1900] AC 539 at 545.
  86. ^ Feist Publications, Inc. v. Rural Telephone Service Co. online at Cornell University.
  87. Ginsburg 2003, p. 17.
  88. CCH Canadian Ltd. v. Law Society of Upper Canada, 2002 FCA 187, [2002] 4 FC 213
  89. Ginsburg 2003, pp. 18f.
  90. Robbin Singh: UNDERSTANDING THE CONCEPT OF ORIGINALITY UNDER COPY RIGHT LAW IN INDIA. (PDF) In: Law Mantra Journal. LAW MANTRA, accessed January 13, 2018 .
This version was added to the list of articles worth reading on March 15, 2006 in this version .