Is it a work of artistic craftsmanship? Implications of the WaterRower case

A High Court judge’s refusal to strike out a copyright infringement claim has reignited the long-standing debate on UK law’s definition of artistic craftsmanship, and what can – and cannot – be considered eligible for copyright protection. Will 2023 be the year this is finally put to bed, and what could this mean for designers and manufacturers?

In 2021, Jackson Pollock’s ‘Number 17, 1951’ sold at the Macklowe collection auction in New York for a record-breaking $61.2m. Eye-watering sums such as these naturally divide opinion between those that see Pollock’s works as priceless masterpieces of abstract expressionism, and those who believe a toddler let loose on a box of crayons could achieve much the same effect.

Indeed, the merits of any form of creative or artistic expression are entirely subjective. One person’s masterpiece is another’s squiggly splodge. For the UK’s IP courts, however, questions regarding the criteria relating to the concept of artistic craftsmanship have been at the root of several recent copyright disputes, the most recent of which involves two designers and manufacturers of exercise equipment.

Rowing machine or objet d’art?

The WaterRower is a wood-framed, water-based rowing machine invented in the 1980s by John Duke, a former rower, having been a member of the US national team in 1975. Mr Duke has a Bachelor of Science degree from Yale and a Masters in Ocean Systems Management from MIT, which included a study of naval architecture. In the decision at issue, he is described as having a life-long interest in various forms of art, crafting with wood, and artistic design. Now in its eighth iteration, the WaterRower aims to replicate the experience of on-water rowing. Crucially, however, it also offers the user “a welcome emotional connection as they would [have] with a favoured piece of art or furniture”, according to the company’s UK website.

Much of the company’s literature focuses on design as a central element to the WaterRower. Inspired by furniture from America’s 18th century Shaker colonies, which prized functional design and quality craftsmanship over superfluous decoration, the WaterRower has even been featured in numerous design-related publications and is on display at London’s Design Museum.

In 2019, however, another wood-based rowing machine intent on combining function with design entered the market. Trading under the name Topiom, Hong Kong-based Liking Limited aims to provide “functional fitness furniture” that would “look at home in your living room”.  

For WaterRower, however, Topiom’s design was a little too familiar. The resemblance to its existing products was such that WaterRower UK claimed infringement of copyright against Liking Limited, under the protections afforded to works of artistic craftsmanship by the Copyright Designs and Patents Act 1988 (CDPA).

Topiom admits to having copied the eighth iteration of the WaterRower to create its TOPIOM Model 1 but disputes the subsistence of copyright. An application for strike out under CPR 3.4(2)(a) and/or summary judgment under CPR 24.2(a)(i) was made by Topiom last year. The claimant, they believed, had no reasonable grounds to claim the WaterRower is a work of artistic craftsmanship. But would the judge agree?

One country, two laws

Unfortunately, copyright law in the UK is currently rather unclear. 

UK copyright law accommodates both UK and EU principles, which differ on the definitions of, and tests for, what qualifies as a work attracting copyright protection. In EU law any object is eligible for copyright protection if it is original in the sense that it expresses the intellectual creation of its author. This criterion is set out by the CJEU in Cofemel, where expression of the author’s intellectual creation is said to be a result of free and creative choices. In the present case, Topiom argued creation of the WaterRower was mainly based on technical considerations, making the free choices available insufficient for the expression of intellectual creation. The restrictions of technical considerations were also discussed in the Brompton Bicycle case, in which the CJEU decided that copyright protection is available if a product can still be designed in such a way that reflects the author’s personality.

UK law, however, is more restrictive. Under the CDPA, artistic works must fit into a category as set out in section 4(1). In the present case the WaterRower is alleged to be a work of artistic craftsmanship, but there is no definition in the statutes as to what that term means. Interpretation falls to the leading case Hensher, in which the House of Lords discuss the scope and meaning of the term artistic craftsmanship. Despite a unanimous decision from the five Law Lords that the furniture at issue was not a work of artistic craftsmanship, identifying the meaning given to “artistic craftsmanship” in Hensher has been described in later judgments as not straightforward.  

Until recently, products that had been industrially manufactured could not obtain full copyright protection in the UK regardless of artistic merit, and were covered for only 25 years, rather than the life of the creator plus 70 years. 25 years is the maximum term for registered design protection, which arguably offers less complex infringement proceedings. The much longer term now potentially afforded by copyright protection has opened the floodgates for cases such as the one now under discussion. The products in question mostly being created at least 25 years ago only adds to the complexity of the cases.  

Outward appearance or inward significance?

Despite Topiom’s arguments of functionality and design restrictions, its application to strike out WaterRower’s claim was dismissed by the High Court. David Stone, deputy High Court judge, declared the claimant had “real prospects of establishing that the WaterRower is a work of artistic craftsmanship”.

In his consideration of EU case law, the Judge rejected Topiom’s arguments that the technical and other constraints on Mr Duke “left no room for creative freedom or room so limited that the idea and its expression become indissociable”, and that therefore the WaterRower cannot be regarded as possessing the originality required for it to constitute a work. In his view, the technical constraints did not seem to be of the type that force a designer to a single, defined outcome, meaning the claimant has real prospects of demonstrating free and creative choices were made which reflect the author’s personality.

When considering the leading UK case, Hensher, the judge reviewed the speeches made by each Law Lord and concluded there were multiple reasons for there to be real prospects of establishing the WaterRower as a work of artistic craftsmanship. Three of the Lords in Hensher considered the intention of the creator was relevant to determining artistic craftsmanship, and in this case, there was already some evidence as to the creator’s artistic intention, with the judge commenting there was likely to be more to come. The Judge also concluded that the WaterRower is no less artistic than the examples of potentially artistic works provided by Lord Simon in the Hensher case, such as stained-glass windows, hand-painted tiles, and wrought iron gates.

Labour or vision?

One thing the parties did agree on is that the inconsistencies between UK law on the one hand (with its closed list of categories) and EU law on the other would need to be resolved in due course. Both claimant and defendant must now prepare for trial. There remains a likelihood, however, that the parties may settle, in which case we will have to wait for another dispute to throw further light on this complex area of law.

Nevertheless, the question around which objects and products qualify for copyright protection will not disappear, nor will the debate around harmonising EU and UK judgments. Should WaterRower be successful, it is possible that many other designers and manufacturers of visually appealing but practical items may seek to enforce rights in their work.  

Mass-market retailers will undoubtedly await the outcome with bated breath, as it is not uncommon for more affordable vendors to emulate the designs of high-end stores for a fraction of the price. Until questions around the parameters of artistic craftsmanship are answered, our law will continue to satisfy the demands of Douglas Adams’ Galactic philosopher Vroomfondel for “rigidly defined areas of doubt and uncertainty”.