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Marcel Pemsel
Mar 18, 2026, 2:27:55 AMMar 18
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[Guest Post] Music to my ears: Copyright protection of iconic guitars and other works of applied art
The IPKat has received and is
pleased to host this guest contribution from Katfriend Federica Pezza,
who explores the recent case law on the copyright protection of works of
applied art in Germany, Switzerland and Italy. Here is what Federica
writes:
Music to my ears: Copyright protection of iconic guitars and other works of applied art
by Federica PezzaFresh off the press: with its default judgement no. 14c O 64/25 in favour of Fender Musical Instruments Corporation (Fender), the Regional Court of Düsseldorf confirmed that the iconic Stratocaster® guitar body design enjoys protection under copyright law.
 |
| The original Fender Statocaster |
On Monday 9 March, the company published a press release (here)
praising the ruling, which “reinforces the value of originality and
ensures that the authenticity players associate with Fender continues
for generations to come”. Meanwhile, the same week on Thursday, the sale
of David Gilmour‘s “Black Strat” guitar (sold for $14.55 million
at Christie’s auction) marked the most expensive guitar ever sold. This
story is not just about music, it is also about business decisions (and
related investments) and, of course, about intellectual property
rights, especially when it comes to the protection of works of applied
art.
But let us start from the beginning. In Germany, historically, the threshold for protecting works of applied art has always been a very high one. Indeed, based on previous German practice, a high artistic value was required in order to establish the originality, and therefore, the protectability via copyright laws for this kind of works; conversely, works of “free art” attracted protection more easily. Notably, everything changed (or at the very least, started to change) with the well-known “Birthday Train decision” of 13 November 2013 [IPKat here]. In this landmark ruling, the German Federal Court of Justice (BGH) confirmed that even a wooden birthday train is protectable under German copyright laws, clarifying that after the 2004 reform of the Geschmacksmustergesetz (German Registered Designs Act), implementing Directive 98/71/EC, the traditional distinction between “works of applied art” and “works of free art” has been abandoned. According to the BGH, designs qualify for protection if they achieve a level of creativity that allows an art‑attentive public to justifiably describe them as “artistic.”
And it goes without saying: if a wooden toy train is protectable, why not an iconic guitar?
In the case at hand, the defendant was Yiwu Philharmonic Musical Instruments Co, a China‑based manufacturer selling electric guitars resembling the well-known Stratocaster® on the AliExpress platform.
But let us start from the beginning. In Germany, historically, the threshold for protecting works of applied art has always been a very high one. Indeed, based on previous German practice, a high artistic value was required in order to establish the originality, and therefore, the protectability via copyright laws for this kind of works; conversely, works of “free art” attracted protection more easily. Notably, everything changed (or at the very least, started to change) with the well-known “Birthday Train decision” of 13 November 2013 [IPKat here]. In this landmark ruling, the German Federal Court of Justice (BGH) confirmed that even a wooden birthday train is protectable under German copyright laws, clarifying that after the 2004 reform of the Geschmacksmustergesetz (German Registered Designs Act), implementing Directive 98/71/EC, the traditional distinction between “works of applied art” and “works of free art” has been abandoned. According to the BGH, designs qualify for protection if they achieve a level of creativity that allows an art‑attentive public to justifiably describe them as “artistic.”
And it goes without saying: if a wooden toy train is protectable, why not an iconic guitar?
In the case at hand, the defendant was Yiwu Philharmonic Musical Instruments Co, a China‑based manufacturer selling electric guitars resembling the well-known Stratocaster® on the AliExpress platform.
 |
| Original Fender left, copy right |
With
its decision (appealable within one month), the Court confirmed that
the Stratocaster® design constitutes a copyrighted work of applied art
both under the standards applicable in 1954 and under current
EU‑harmonized copyright law and BGH case law.
Indeed, not only this design is “recognizable” (as it can be identified with sufficient precision and objectivity), but it is also “original”, as it represents its author's own intellectual creation. Factors to consider include the following: the soft, flowing curves reminiscent of a human torso, the asymmetric and dynamic shape, and the overall impression of a dancer leaning to one side. The Court also noted that nothing comparable existed in the design landscape at the time.
Finally, the German judge confirmed that making infringing products available for sale in any EU country is sufficient to establish liability, irrespective of where the manufacturer is established.
Indeed, not only this design is “recognizable” (as it can be identified with sufficient precision and objectivity), but it is also “original”, as it represents its author's own intellectual creation. Factors to consider include the following: the soft, flowing curves reminiscent of a human torso, the asymmetric and dynamic shape, and the overall impression of a dancer leaning to one side. The Court also noted that nothing comparable existed in the design landscape at the time.
Finally, the German judge confirmed that making infringing products available for sale in any EU country is sufficient to establish liability, irrespective of where the manufacturer is established.
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Works of applied art in Switzerland: the “Hang” case
And how about Switzerland? The Swiss Hang is a musical instrument invented by PANArt Hang Manufacturing Ltd. in Bern, and consists of two hemispherical shells made of nitrided steel, producing a soothing, resonant sound when played with the hands. Not your average electric guitar.
And how about Switzerland? The Swiss Hang is a musical instrument invented by PANArt Hang Manufacturing Ltd. in Bern, and consists of two hemispherical shells made of nitrided steel, producing a soothing, resonant sound when played with the hands. Not your average electric guitar.
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With its decision of 2 July 2024,
the Supreme Court of the Canton of Berne, held that the Hang, in all
its versions, is protected by copyright under Swiss law, German law and
Dutch law. In other words: different country, different instrument (and,
likely, different target audience), but the same level of protection.
Notably, the Court confirmed that the decisive factor for copyright protection is ultimately the artistic impression of the design, which is “not the necessary or even exclusive consequence of a single building element, but is determined by the design, lines and the interaction of all four elements.” [namely: i) lens-shaped, consisting of two spherical segments, ii) central dome iii) opposite resonance hole and iv) sound fields arranged in a circle on the upper spherical segment.] On this basis, it stated that: “although the four elements in dispute for the "Hang" could all be reduced to simple geometric figures, their combination or overall appearance results in an unmistakable combination of features that differs from the previously known set of shapes”.
Works of applied art in Italy: the Rubik’s Cube
Historically, Italian law did not allow for protection of works of applied art under both copyright and design law. However, Legislative Decree No. 95/2001 implementing Directive 98/71/EC, recognized that the protection afforded to designs under the Industrial Property Code can be cumulated with copyright protection. Accordingly, in line with Article 2(10) of Italian Copyright Law No. 633/1941, works of industrial design are protectable, provided that they present: (i) creative character, and (ii) artistic value. The latter criterion somehow contradicts the position of the Court of Justice of the EU (CJEU) expressed in Flos [IPKat here] and more recently in Mio/konektra, according to which works of applied art must be treated like any other type of work [IPKat here]. It goes without saying: the “artistic value” requirement should be removed.
But reality does not always match expectations; and the artistic value criterion stays, both in the statute and in its interpretation. In a recent decision of 30 April 2025, the Venice Court confirmed that the requirements of creative character and artistic value are satisfied when it comes to the “Rubik’s Cube.” Notably, the “artistic value” was established by the Court in view of the numerous awards received in artistic and cultural spheres, demonstrating the symbolic value of this object, which “remains a must‑have not only among children and teenagers, but also among design enthusiasts”.
Notably, the Court confirmed that the decisive factor for copyright protection is ultimately the artistic impression of the design, which is “not the necessary or even exclusive consequence of a single building element, but is determined by the design, lines and the interaction of all four elements.” [namely: i) lens-shaped, consisting of two spherical segments, ii) central dome iii) opposite resonance hole and iv) sound fields arranged in a circle on the upper spherical segment.] On this basis, it stated that: “although the four elements in dispute for the "Hang" could all be reduced to simple geometric figures, their combination or overall appearance results in an unmistakable combination of features that differs from the previously known set of shapes”.
Works of applied art in Italy: the Rubik’s Cube
Historically, Italian law did not allow for protection of works of applied art under both copyright and design law. However, Legislative Decree No. 95/2001 implementing Directive 98/71/EC, recognized that the protection afforded to designs under the Industrial Property Code can be cumulated with copyright protection. Accordingly, in line with Article 2(10) of Italian Copyright Law No. 633/1941, works of industrial design are protectable, provided that they present: (i) creative character, and (ii) artistic value. The latter criterion somehow contradicts the position of the Court of Justice of the EU (CJEU) expressed in Flos [IPKat here] and more recently in Mio/konektra, according to which works of applied art must be treated like any other type of work [IPKat here]. It goes without saying: the “artistic value” requirement should be removed.
But reality does not always match expectations; and the artistic value criterion stays, both in the statute and in its interpretation. In a recent decision of 30 April 2025, the Venice Court confirmed that the requirements of creative character and artistic value are satisfied when it comes to the “Rubik’s Cube.” Notably, the “artistic value” was established by the Court in view of the numerous awards received in artistic and cultural spheres, demonstrating the symbolic value of this object, which “remains a must‑have not only among children and teenagers, but also among design enthusiasts”.
.png)
The same principle was then reiterated by the Italian Supreme Court which, with its decision of 29 July 2025,
confirmed the copyright protection of the Rubik’s Cube in a case
involving its infringing reproduction by the toy manufacturer Spin
Master. Interestingly, the Court rejected the defendant’s allegation
that no infringement occurred because trademark protection of the
Rubik’s shape had been denied before the EUIPO (T-1170/23, T-1171/23, T-1172/23 and T-1173/23, CJEU press release here).
In the Court’s view, this argument was completely irrelevant, taking
into account that the famous puzzle nevertheless qualifies for copyright
protection.
Interestingly, this very kind of protection had previously been denied to the Rubik’s Cube in France (decision of 6 July 2012, RG n° 11/00091), on the ground that: “The choice to associate a cubic shape with six very common colours in no way demonstrates the imprint of the author’s personality and cannot confer on the Rubik’s Cube an originality that would make it protectable under copyright law”.
Yet another intricate puzzle
The recent decisions in Germany, Switzerland and Italy demonstrate that, in line with EU practice, courts are more and more willing to grant copyright protection to works of applied art. They also confirm that the copyright system is different from, and autonomous in relation to, the trademark system. Yet, the overall framework is still a complex one, with inconsistencies both in the establishment of the relevant copyright threshold (cf. French Court denying protection for the Rubik’s Cube) and in the definition of criteria for protection (cf. the notion of artistic value in Italy). More case law will likely bring more clarity on this topic.
And while we go through yet another intricate puzzle, I suggest attending a hang concert: the instrument is apparently used in meditation due to its calming qualities.
Interestingly, this very kind of protection had previously been denied to the Rubik’s Cube in France (decision of 6 July 2012, RG n° 11/00091), on the ground that: “The choice to associate a cubic shape with six very common colours in no way demonstrates the imprint of the author’s personality and cannot confer on the Rubik’s Cube an originality that would make it protectable under copyright law”.
Yet another intricate puzzle
The recent decisions in Germany, Switzerland and Italy demonstrate that, in line with EU practice, courts are more and more willing to grant copyright protection to works of applied art. They also confirm that the copyright system is different from, and autonomous in relation to, the trademark system. Yet, the overall framework is still a complex one, with inconsistencies both in the establishment of the relevant copyright threshold (cf. French Court denying protection for the Rubik’s Cube) and in the definition of criteria for protection (cf. the notion of artistic value in Italy). More case law will likely bring more clarity on this topic.
And while we go through yet another intricate puzzle, I suggest attending a hang concert: the instrument is apparently used in meditation due to its calming qualities.
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