Birkenstocks Are Officially Not Art, German Court Rules

There’s no question a large amount of artistry goes into fashion design, including footwear. But a German court may have just set a precedent on whether such work can be legally protected. This week, the court ruled that Birkenstocks fail to meet the legal definition of art.

Birkenstocks are sandals with cork soles that conform to the wearer’s footprint. Hugely popular, they’re also subject to copycats that manufacture similar designs in an effort to capitalize on the brand’s success. Birkenstock attempted to litigate the issue in a German court by claiming their product was art and therefore subject to copyright law, meaning knock-offs could be considered copyright infringement. They sought injunctions against three companies whose names were not publicly disclosed.

According to the Associated Press, the legal strategy failed to pay off. While a Cologne court agreed with Birkenstock in an earlier ruling that the shoes merited being defined as art, a higher court overturned it on appeal. In the newest ruling, Germany’s Federal Court of Justice upheld the appeal, asserting that a work—in this cases, shoes—can’t be copyrighted if they are bound by technical or design elements that limit artistic expression.

“For the copyright protection of a work of applied art—as for all other types of work—the level of design must not be too low,” the court said. “For copyright protection, a level of design must be achieved that reveals individuality.”

In other words, the mass-produced Birkenstocks are too uniform to be considered a unique work of art.

Birkenstocks originated in Germany in the 1770s but didn’t make their stateside debut until 1966, when a German-American dressmaker named Margot Fraser spotted the shoes on a trip. With chronically aching feet, Fraser found the shoe comfortable and believed the style would appeal to American consumers. She secured U.S. distribution rights from the Birkenstock family and began marketing them, mainly in health food stores. Given the counterculture movement of the 1960s, the shoes developed a reputation for being the footwear of choice for hippies. A wider variety of designs and better distribution led to the brand taking off in the States, and they’ve since outgrown their bohemian roots; a pink pair was featured in the 2023 blockbuster Barbie.

This latest attempt at protecting their design elements isn't likely to be the last. Company lawyer Konstantin Wegner stated that further legal action is possible and that, “We want to add arguments in these pending proceedings.”

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