/ Created by German Federal Court of Justice

Copyright claims of a designer of Porsche AG

Hearing date on December 9, 2021 at 11:00 a.m. in case I ZR 222/20 (copyright claims of a designer of Porsche AG for further equitable participation pursuant to Sec. 32a UrhG)

Year of issue: 2021
Date of publication: 26.07.2021
No. 142/2021

The I. Civil Senate of the Federal Court of Justice, which is responsible, among other things, for copyright law, has to decide on copyright claims for further reasonable participation of the former head of the car body design department of Porsche AG in the economic success of the Porsche 911.

Facts of the case:

The defendant is Porsche AG. The plaintiff is the daughter of the former head of the body design department of the defendant, who died in 1966. In the course of his work, the latter was involved in the development of the Porsche 356 vehicle model produced from 1950 onwards and its successor, the Porsche 911, which has been built since 1963. The extent of his involvement in the design of these models is disputed between the parties.

Course of proceedings to date:

The plaintiff, as the heir of her father and on the basis of assigned rights, is demanding from the defendant pursuant to Sec. 32a (1) Sentence 1 UrhG an appropriate share in the proceeds from the sale of the 991 series of the Porsche 911 produced from 2011 onwards, starting from January 1, 2014. She believes that essential design elements of the original models of the Porsche 356 and the Porsche 911 developed with the significant involvement of her father have been adopted and continued in the vehicles of this series.

The Regional Court dismissed the action. The Higher Regional Court dismissed the plaintiff's appeal. It held that the plaintiff had proved that her father had created the external design of the body of the Porsche 356 in its original form, which was a work of applied art within the meaning of Section 2 (1) No. 4, (2) UrhG, and that he was therefore its author under Section 7 UrhG. However, the 991 series of the Porsche 911 had in any case been created pursuant to § 24 (1) UrhG in free use of the external design of the body of the Porsche 356, which had at most served as an inspiration for the new design. Such use does not give rise to a claim to equitable participation under Section 32a (1) sentence 1 UrhG. With regard to the external design of the body of the Porsche 911 in its original form, the plaintiff had not succeeded in proving that her father was its co-author. In the appeal allowed by the Court of Appeal, the plaintiff continues to pursue its claim.

The relevant provisions are:

§ Section 2 (1) No. 4 UrhG.

Protected works of literature, science and art include in particular works of fine arts including works of architecture and applied arts and designs of such works.

§ Section 2 (2) UrhG

Works within the meaning of this Act are only personal intellectual creations.

§ Section 7 UrhG

The author is the creator of the work.

§ Section 24 (1) UrhG

An independent work created in free use of the work of another may be published and exploited without the consent of the author of the work used.

§ Section 32a (1) UrhG

If the author has granted another a right of use on terms which result in the agreed consideration being conspicuously disproportionate to the income and benefits derived from the use of the work, taking into account the author's overall relationship with the other, the other is obliged, at the author's request, to consent to an amendment of the contract granting the author a further fair share according to the circumstances. Whether the contracting parties foresaw or could have foreseen the amount of the income or benefits obtained is irrelevant.

Previous instances:

Stuttgart Regional Court - Judgment of July 26, 2018 - 17 O 1324/17.
Stuttgart Higher Regional Court - Judgment of November 20, 2020 - 5 U 125/19


(German) press release of July 21, 2021, Federal Court of Justice Karlsruhe (Bundesgerichtshof Karlsruhe)