Case Summary

In the case of WaterRower (UK) Limited v Liking Limited (t/a Topiom) [2024] EWHC 2806 (IPEC) ("WaterRower v Liking"), the UK High Court (Intellectual Property Enterprise Court) found that WaterRower (UK) Limited ("WaterRower")'s prototype rowing machine does not qualify for copyright protection as a "work of artistic craftsmanship" under the UK Copyright, Designs & Patents Act 1988 (the "CDPA").

In the UK, three-dimensional objects are typically protected by design rights, which last up to 25 years for registered designs and 10-15 years for unregistered designs. However, WaterRower claimed that its prototype rowing machine and its various iterations were protected by copyright as a "work of artistic craftsmanship", granting the creator copyright protection lasting for their lifetime plus 70 years. Liking Limited asserted that copyright did not subsist in WaterRower's prototype rowing machine.

Under UK law, section 4(1) of the CDPA states that copyright includes "artistic works". In particular, a work may be protected by copyright if it is a "work of artistic craftsmanship" pursuant to Section 4(1)(c). This category includes works that exhibit both artistry and craftsmanship, but the term has no statutory definition. Accordingly, the meaning of a "work of artistic craftsmanship" has been shaped by several key cases, leading to various interpretations by the UK and EU courts.

The High Court was bound by the House of Lords' decision in George Hensher Ltd v Restawile Upholstry [1976] AC 76 ("Hensher") – a case in which the law lords gave five separate judgments. More recent judgments have commented that it is difficult to identify the ratio from the House of Lords' reasoning in Hensher.

However, drawing on the background to the introduction of the first legislative protection for works of artistic craftsmanship, subsequent legislative developments, Judge Hacon's judgment in Response Clothing Limited v The Edinburgh Woollen Mill Limited [2020] EWHC 148 (IPEC) and a couple of judgments from other common law jurisdictions, Mr Forsyth formulated the following threads of principle as to what constitutes a "work of artistic craftsmanship" under UK law:

  1. Parliament has created a distinction between copyright protection accorded to works within with CDPA s.4(1)(c) and the other artistic works under s.1. The former requires artistic quality, the latter do not.
  2. A work of artistic craftsmanship involves a medium that has been worked with craftsmanship, wherein the visual appearance involves artistic expression, which is not wholly constrained by functional constraints.
  3. The ordinary meaning of the statutory phrase requires no further formulation or judicial definition.
  4. The statutory phrase should be assessed as a whole.
  5. Copyright protects expression. The process of creating a work of artistic craftsmanship and the resulting work of artistic craftsmanship are intrinsically interrelated. The craftsmanship creating the work must be artistic; the work will be one of artistic craftsmanship.
  6. The court can rely on any evidence it views as relevant to assist it forming an objective view on the statutory question.
  7. The assessment is not one that requires any value "assessment of artistic merits or quality" in order to decide whether a work is one of artistic craftsmanship.
  8. Mass manufacture of the work does not preclude it from being a work of artistic craftsmanship. Neither do commercial aims or the involvement of technology or tools in the creation of the work.
  9. The author of the work can be multiple people provided there is a sufficient nexus.
  10. More than eye appeal is needed – visually appealing aesthetics will often be present in works of artistic craftsmanship but such evidence does not determine the underlying question of whether that work is one of an artist craftsman.
  11. It is the craftsmanship in the work that is relevant – not the qualification or training of the craftsman – although skill and training will assist in assessing the presence of craftsmanship.

The Judge also considered assimilated EU case law, including the interpretation of the InfoSoc Directive 2001/29 as implemented by the CDPA.

Assimilated EU law, as interpreted in Cofemel v G-Star Raw (C-683/17) ("Cofemel"), does not consider aesthetic effect necessary for copyright protection. The Cofemel judgment established that a "work" under EU law must be an original creation reflecting the creator's personality and creative choices.

Technical constraints that limit creative freedom disqualify a subject from qualifying as a "work" and aesthetic effect alone does not determine whether a design is an intellectual creation. In Brompton Bicycle Ltd and another v Chedech/Get2Get (C-833/18) ("Brompton"), the court confirmed that even if technical considerations influence a design, it can still qualify for copyright protection if it reflects the creator's personality and originality.

In contrast, as explained above, in the UK the principles explained in Hensher require artistic merit beyond mere "eye appeal".

To navigate a path through this inconsistency and reach a determination in the dispute before him, the judge used a two-step approach to assess whether copyright subsists under Section 4(1)(c) of the CDPA. First, the Judge applied the EU standard of originality within the meaning of the InfoSec Directive as a "Gateway". If the work met this standard, the second step was to determine if it qualifies as a work of artistic craftsmanship under UK law.

WaterRower's prototype rowing machine was deemed original under the EU standard, as interpreted in the Cofemel and Brompton cases. The prototype rowing machine was original because its design was not solely dictated by technical function, and the choices made by its creator reflected his own intellectual creation.

However, WaterRower's prototype rowing machine did not qualify as a work of artistic craftsmanship under UK law, specifically section 4(1)(c) of the CDPA. The Judge noted that while the design was visually striking and many people found it aesthetically pleasing, it did not meet the standard of being "artistic" as required by the Hensher case. The creator's intention was not to create something beautiful for its own sake but rather to address functional and commercial needs.

The Judge also found that changes made in later versions of the prototype rowing machine were driven by practical considerations like manufacturability and efficiency, rather than creative choices. These changes did not reflect the creator's intellectual creation and were not considered expressions of his free and creative choices. Therefore, WaterRower's prototype rowing machine did not meet the necessary artistic quality to be considered a work of artistic craftsmanship.

What does this mean for designers in real life?

While the outcome of this case was eagerly anticipated by the design community, it unfortunately may not have provided the clarity (or decision) that many had hoped for. We seem, instead, to be amassing an increasing list of what is not a work of artistic craftsmanship, rather than what might constitute one! The judge concluded that there was no way to fully reconcile the EU and UK approach in this case and, as a result, sought to combine them.

He first applied the EU test (the Infopaq originality standard) as a means to determine eligibility for protection and then applied the UK artistic craftsmanship test, despite acknowledging that this test was not required under EU copyright law. The ultimate effect is that by combining the two approaches, the narrower test (the UK artistic craftsmanship test) has dominated given it sets a higher threshold.

Consequently, it is unlikely that this ruling will lead to a surge in the number of new works qualifying for copyright protection. This area is ripe for reform and clarification. The UK Intellectual Property Office is planning two consultations in 2025 that will look at a number of design law issues, and it has suggested that this may include a look at connected copyright issues.

Even if artistic craftsmanship falls within the scope of the review, and changes to primary legislation are unlikely before 2027 at the earliest. Similarly, it is unlikely that the Supreme Court will have an opportunity to look at this issue in the short term, and therefore the House of Lords' decision in Hensher will stand for a while yet. Until then, it remains uncertain whether and to what extent designers can claim copyright over their products. In our view, if a product is more focused on its artistic merit than its functionality, it may have a higher chance of success.

While more designers may be willing to pursue a copyright claim, design protection itself (both registered and unregistered) will continue to play a crucial role in protecting products. Registered designs offer clarity and certainty regarding the claimed design and the date the right arises, whilst the flexibility of unregistered rights means that these continue to be a powerful enforcement tool.

The most successful cases will likely continue to use a combination of the different rights that cover products to maximise effectiveness in cracking down on those who seek to undermine the investment designers put into creating new and beautiful products.

For further information regarding copyright and trademark law, speak to our experts John Coldham, Lucy Singer, Ailsa Carter, Kulraj Singh Bhangra.