The Wassily chair is one of the most copied furniture designs of all time, making it a prime candidate to discuss how a chair design can be protected by law.

A tale of a chair

The Wassily chair (or B3 Club chair as it as then called) was designed in the 1920s by famous Bauhaus designer Marcel Breuer (1902-1981) in Dessau, Germany, while he was but an apprentice. Breuer had been inspired by the frame of his Adler bicycle and the Dutch De Stijl movement to reduce the traditionally overstuffed club chair to its bare essentials. All that remains is its mere outline, an elegant composition traced in gleaming steel.

Breuer spoke of the chair as his “most extreme work . . . the least artistic, the most logical, the least ‘cozy’ and the most mechanical.”

The Wassily chair (named after famous painter Wassily Kandinsky) was the first chair produced with bent steel tubing, which had then only recently been invented by the German company Mannesmann. While the design rights have expired long ago, Wassily is still produced today by Knoll, being the owner of the Wassily trademark.

Just like the “Wagenfeld” Lamp, it took a while for the Wassily chair to gain popularity. Today, it is still considered progressive even almost a hundred years later – something many designers aspire to. It’s no wonder, that it is one of the most copied furniture designs of all time, making it a perfect object of a study in how such an avant-garde design can be protected by the law. Because the chair was recognised in the 80s as “a piece of art” in Western Germany, I will focus on the protection most specifically created for the various forms of art: copyright.

Can furniture be art?

German and European courts have ruled on chairs and the Wassily chair in particular multiple times. Already in 1932, the German Reichsgericht (RG) had decided that the Breuer’s creation merited copyright protection: because of its individual characteristics and enduring appeal despite the tastes of the masses at the time, the chair couldn’t be merely assesed as product design, but as art as well.

To be precise, works of product design like furniture are works of applied art, § 2 I Nr. 4 UrhG. The inclusion of applied art means that the intended purpose of use of a product does not conflict with copyright protection and does not generally preclude “art”. However, the courts traditionally only accepted truly special product design as being individual enough to merit copyright protection. The chair looks really visually appealing? Not enough. Because of the recombination and variation of known elements the chair is considered timeless? Not enough. “But why?” you may ask.

Copyright systems cover various kinds of works under protection, including literary works, musical works, artistic works, works of science, etc. Under the many kinds of works, copyrightability of works of applied art or useful articles is an on-going issue judges and practitioners have to deal with, as works of applied art have both utilitarian functions and aesthetic features. On the one hand, copyright protection should be extended to the aesthetic features so as to achieve the purpose of establishing incentives for creation and stimulating the creative industries. On the other hand, works of applied art are mass-produced for the public’s use in daily life. Overprotection of works of applied art that prevents any third party from imitating the functional aspects will impede the development of industrial design and competition.

A game of levels

In the 1995 BGH decision “Silberdistel” the German Federal Court court argued, that old design law (from before the EU Design Directive 98/71 EC) formed a kind of “lesser copyright” for works of applied art. Per the judges, it was necessary to delimit “little” and “big” copyright by raising the bar for copyright protection.

Under these considerations, the courts had adopted a “three-level-doctrine”: the average level of designer skill as the first degree; the exceeding average level of designer skill as the second degree; and the substantially exceeding average level of designer skill as the third degree. A work demonstrating a minimal level of creativity was copyrightable as work of fine art, such as a simple drawing or a plain design. However, for industrial products as works of applied art, the second-and third-level originality applied. Under such circumstances, products are copyrightable only in cases “where there is a considerable exceeding of the average degree of the design skill”. The more complex and creative of the work, the wider scope of copyright protection will be available.

The Geburtstagszug paradigm shift

However, this changed in 2015 with the watershed ruling “Geburtstagszug”. The BGH reversed it’s earlier stance, abandoning the high level of originality requirement in the previous practice and holding that “the 2004 amendments to German design law has established the protection of designs as an independent intellectual property right and therefore detached design law from copyright law”. Since design law no longer requires originality for designs “but individual character in the design differing it from the existing design corpus”, the BGH ruled that design protection and copyright protection couldbe mutually applicable to works of applied art and special preconditions were no longer required for copyrightability. Finally, the BGH concluded that for copyright protection of works of applied art, “a degree of creativity which allows, from the view of a public open to art and sufficiently skilled in ideas of art, to be called an ‘artistic’ performance” would be required.

Europe follows suit

The European Court of Justice (ECJ) adopted this line of reasoning in the Portuguese referal procedure “Cofemel” in 2017. The court had in the preceding years started to harmonize the different national notions of what can be copyrighted. Starting in the latter half of the 2000s, the ECJ determined a uniform standard definition of a copyrightable work for the EU. By relying on a teleological interpretation of the various directives, as well as the Berne Convention (“the” most important international treaty concerning copyright), the Court stated in fact that also for works protected under the InfoSoc Directive – which, as such, does not envisage any particular notion of originality, but only logically require it – the applicable standard would be that of “author’s own intellectual creation”, meaning the work has to have been created using creative freedom in a way that “stamps” the work with the creator’s personal touch. “Cofemel” further clarified, that member states not only don’t have to set different necessary levels of individuality, but are actually actively prohibited from doing so in order not to conflict with European law.

No more scindibilitá

This will likely prohibit one of the other parts of copyright law in which Marcel Breuer’s armchair got embroiled in. Because of Art. 2 VII of the Berne Convention, the Italians traditionally approached copyright protection of designs rooted within the principle of scindibilità (separability), meaning product design does not qualify for copyright at all, going even further than the German theory of levels. Italian retailers used this fact to their advantage and targeted the German market with much lower priced designer furniture. The ECJ had however in it’s previous sessions regarding chairs curtailed much of the excesses of this practice, deciding that someone who advertises especially for the consumers of a certain other member state has to deal with that state’s copyright as well.

A true piece of design art

The fact that the Wassily chair is still instantly recognisable as Marcel Breuer’s signature creation almost one hundred years later is proof of its individuality and artistic value. Breuer had designed something which had never been seen before. Breaking with tradition and using brand new production methods this chair is a work truly worthy of copyright protection.

B3 was not the only chair at the center of legal disputes. Practically every famous chair design has been the focus of a suit in the past. Mart Stam’s well-known “Stahlrohrstuhl”, Le Corbusier’s “LC1” through “LC4”, Rietveld’s “Red and Blue”, the Mackintosh chairs and some more passed through the hallowed halls of the law. A lot of these cases involved the Italian retailer Cassina. Now you know why!

Image: Erich Consemüller, 1926

Designer: Marcel Breuer, distributed by Knoll.