The Stratocaster® decision: The changing landscape of copyright protection in the EU

Background

The Fender Stratocaster® is one of the most recognisable electric guitars ever made. Designed by Leo Fender in 1954, its distinctive double cutaway body and curved silhouette have made it culturally iconic – and widely imitated. That imitation has given rise to a long-running tension between Fender's desire to protect its design and the practical difficulty of doing so.

Fender's earlier IP protection attempts

Fender first sought trade mark protection for the Stratocaster® shape, but that attempt failed in 2009. By that point the shape had been so widely copied that it was deemed no longer capable of identifying Fender as the source – it had become generic.

Registered design protection would have offered another route, but even if Fender had registered the design in the 1950s, that protection would have expired long ago.

Copyright protection, by contrast, lasts for the life of the author plus 70 years; however, for most of the Stratocaster's history, product designs of this kind were simply never considered to fall within the scope of copyright protection at all. That long-held view has since been disrupted by a series of rulings from the Court of Justice of the European Union (CJEU).

The changing landscape

EU copyright law is set out principally in Directive 2001/29/EC, Article 2(a) of which gives authors the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction of their "works". However, the Directive is silent on what a "work" actually is, leaving significant uncertainty across Member States about what qualifies for copyright protection under EU law.

In Infopaq International A/S v Danske Dagblades Forening (C-5/08, 2009), a Danish media monitoring company reproduced short extracts from newspaper articles as part of its service. The question before the CJEU was whether even these brief extracts could attract copyright protection. The court held that they could, provided they reflected the author's "own intellectual creation". This was the key move: the CJEU established that originality is the sole requirement for copyright protection across the EU, and defined it not by reference to artistic merit but simply by whether the work reflects the author's own free creative choices. In other words, a work is original and is eligible for copyright protection if it stems from the author's own intellectual effort and reflects decisions that were theirs to make – it need not be impressive, only genuinely their own.

In Cofemel v G-Star Raw (C-683/17, 2019), G-Star Raw alleged that Cofemel had copied elements of its clothing designs, including their ARC and ROWDY jeans and t-shirt designs. This case was referred to the CJEU because the Portuguese courts were uncertain whether national law could impose additional requirements beyond originality, for instance, that a work must have some aesthetic value or artistic merit, before the product design would be eligible for copyright protection. The CJEU answered decisively: no. The author's own intellectual creation is the only test. Member States cannot add further hurdles, and courts cannotwithhold protection simply because a work lacks artistic distinction. For product designers, this was highly significant as it meant that aesthetic quality was decidedly not a barrier to obtaining copyright protection in the EU.

In Brompton Bicycle Ltd v Chedech/Get2Get (C-833/18, 2020), Brompton alleged that a Korean manufacturer had copied its iconic folding bicycle design. Brompton had originally protected the bicycle's folding mechanism by patent, but that protection had since expired. With no other avenue available, Brompton turned to copyright. The Belgian court referred the matter to the CJEU, asking whether functional objects (things designed primarily to serve a practical purpose) could ever qualify for copyright protection at all. The CJEU confirmed that they can, and the answer again came back to originality. Where a shape is entirely dictated by its technical function, there is no creative freedom, and therefore nothing original to protect. But where a designer had room to make choices, and made them, copyright protection can apply, regardless of whether or not the object also serves a practical purpose.

Together, these decisions established that originality is the only requirement for obtaining copyright protection across the EU, and that the fact that a design is functional does not automatically exclude it from that protection. The door was now open for Fender's claim.

The Stratocaster® decision

Fender brought proceedings before the Regional Court of Düsseldorf against Yiwu Philharmonic Musical Instruments Co., a China-based seller listing electric guitars on AliExpress for shipment into Germany, alleging that the instruments reproduced the Stratocaster® body shape.

The court ruled comprehensively in Fender's favour. Applying the CJEU's originality standard, it held that the Stratocaster® body constitutes a copyrighted work of applied art. While certain features of any electric guitar are inevitably determined by function, the overall form, proportions, and contours of the Stratocaster® reflect the genuine creative expression of its designer. The double cutaway body and curved silhouette were the product of deliberate aesthetic choices, not functional necessity – described by the court as "an outstanding, free creative achievement" that "clearly reflects the personality of its author."

Yiwu Philharmonic was prohibited from manufacturing, offering, or distributing guitars featuring the Stratocaster® body shape in Germany and the EU, with future violations liable to fines of up to €250,000 per infringement.

UK law contrast

The position in the UK differs significantly. Under the Copyright, Designs and Patents Act 1988, copyright protection for three-dimensional objects is available only for "a work of artistic craftsmanship" – a considerably higher bar than the EU's originality standard. Since Brexit, the UK is no longer bound to follow EU law, and the result is a clear divide: within the EU, the Stratocaster® is protected; in the UK, it almost certainly is not.

What this means in practice

The decision will be particularly relevant to businesses whose products have been copied but who have lost design right protection, or whose designs are too old to qualify for it. The key question is whether the product's shape reflects genuine creative choices rather than being purely dictated by function. If so, a copyright claim in the EU may well be worth pursuing.

Concluding remarks

The Düsseldorf ruling illustrates how far EU copyright law has shifted in its treatment of product design, and highlights a growing divergence with the UK's stricter framework. For businesses whose original designs have been copied, it may open doors that many would never have thought to knock on.

If you have any questions regarding this article, or would like further assistance, please contact your usual Swindell & Pearson attorney or Dan Hanna, the author of this article.