A decision by the 9th Civil Division of the Landgericht Braunschweig (a German court) on June 19th has decreed that the daughter of Erwin Komenda, the designer of the original Volkswagen Beetle, is not entitled to any compensation from the alleged use of her father’s design in the 2012 (and up) version of the Volkswagen Beetle. The decision comes to a number of conclusions I find confusing at best, but, then again, I’m no lawyer, certainly not a German one.
Erwin Komenda worked for Ferdinand Porsche’s design firm since 1931. Komenda did a number of projects, including an Auto Union Grand Prix racing car, and soon after that a series of designs for early, larval versions of a “people’s car,” a volkswagen that would eventually evolve into the Volkswagen Strength-through-Joy (KdF) car, which would become better known as the Volkswagen Beetle.
These designs started as early as 1932, with prototypes designed and built for companies like NSU and Zündapp, all of which display the key distinctive elements of the later KdF/Beetle design: the streamlined shape, separate fenders, and even some of the distinctive decorative and strengthening stamping elements incorporated into the hood and engine lid.
Komenda revised the design multiple times as it was being refined and developed over the years.
There’s even patent drawings for the KdF body design with Komenda’s name on them, filed in 1939:
I bring all of these up because they relate directly to the German court’s decision regarding Komenda’s daughter’s claim. The court stated that the plaintiff was unable to prove that her father was involved in the design of the original KdF automobile, which seems kind of insane considering there are signed patent documents showing Komenda as the designer.
Also, the court suggested that the KdF design was merely one of many very similar designs that were being developed in that era:
The defendant has, inter alia, the copyright / co-authorship of the father in denial. She is of the opinion that the original beetle enjoys no copyright protection, as its design was technically conditioned and based on well-known role models. Furthermore, the provision of § 32a UrhG is not applicable to old contracts (ie before the entry into force of the UrhG in 1966).
It was particularly important to note that at the time of making the drawings, there were already numerous designs that had anticipated the concept of the vehicle with a rear engine in a streamlined body with pulled-down bonnet and the merging into the hood pulled down tail (Tatra V570, Mercedes Type 130) , In addition, the applicant could not prove that her father was involved in the draft in the previously presented by Ferdinand Porsche Exposé for a Volkswagen (KdF car).
They’re fundamentally correct about this, as the Beetle was one of many very similar rear-engined, streamlined designs being developed in the early 1930s by designers like Hans Ledwinka, Josef Ganz, and Paul Jaray.
Even so, there are still some significant body design differences between these cars and the KdF. Sure, they all share the same general technical design characteristics, but saying that Komenda’s KdF design doesn’t merit copyrightable status is like saying that the designs of a Fiat Panda and an Acura Integra hatchback are fundamentally the same because they’re both two-door FWD hatchback cars.
Plus, I think the court’s decision gets even shakier when they assert that:
In addition, the Chamber has examined whether the VW Beetle, built from 2014 onwards, is a processing (§ 23 UrhG) or a free use (§ 24 UrhG) of these models from the 1930s, assuming the protective capacity of the drawings and the original beetle. Because of the significant differences in design, the court denied a consistent overall impression and assumed a permissible free use.
OK, if I’m reading this correctly, it seems to be saying that the modern interpretation of the Volkswagen Beetle (the 2014 model is listed here as the statute of limitations states that’s as far back as the plaintiff can go) is somehow as much based on these other streamlined, rear-engined cars from the 1930s as the original Beetle.
I’m going to go out on a limb and say that when Volkswagen was designing this latest iteration of new Beetle back in 2012, nobody at VW’s design studio was saying “Hey, just make a modernized version of a Tatra V570.”
So while I agree the original Beetle design was very much a product of its era, it was also a distinctive and individual product of its era, with its own unique visual design, and it is this very specific design that Volkswagen was using as a template for the new version of the Beetle, and I’m pretty fucking sure this is true because it’s also called a beetle and it’s made by the same damn company.
And it looks like an original Beetle. I mean, come on!
Now, I’m not saying that Komenda’s daughter deserves compensation for this new design based on her father’s old design—I don’t know enough about German contract law to have an opinion there. But I do think it’s established that Komenda did the Beetle’s body design, and the modern Beetles are based on that.
Now, if they want to say the original Beetle body design isn’t copyrightable because VW has not adequately defended the copyright of the design, I think you could make that argument.
There’s innumerable toys and clothing and other consumer goods that use the Beetle design very freely, and the vast majority of these products are not officially licensed or use the VW logo or anything. The Beetle has almost become just part of the common visual culture.
Plus, there was at least one car that was a blatant Beetle copy back in the 1950s: the Orix 610.
Even though the Orix 610 was a clear copy of the Beetle, for some reason VW never pursued legal action against Orix, and 14 of these were built in 1954.
So, based on that, perhaps the court could say that Komenda’s original design is not actually under copyright, so VW (or anyone else, really) is free to design cars based on the look of the original Beetle for free.
But, the court didn’t take that line of reasoning, which is why I’m confused, and of the opinion that Komenda’s daughter got a raw deal.