Background to copyright protection
Under the Copyright, Designs and Patents Act 1988, copyright protection is granted to works of “artistic craftsmanship”. Sadly, this term is not defined in the legislation but has included items such as hand painted tiles and stained glass windows. WaterRower UK Ltd created something different, a rowing machine that used water resistance. Their WaterRower machine was originally a handmade creation made by an American rower in 1985 and was said to be inspired by the aesthetics of Shaker furniture design. It is now in its eighth iteration and has been recognised as a design of interest and featured in publications by the Museum of Modern Art and displayed in the Design Museum in London
WaterRower initially brought an action against Liking Ltd claiming that the latter’s “Topiom” machine infringed copyright in its WaterRower machine and the Defendant sought to strike out the claim on the basis that there was no copyright in the WaterRower machine as it was not a wok of artistic craftsmanship.
Liking Ltd argued that, WaterRower did not have enough aesthetic appeal to make it “artistic” as required by earlier English case law and the Defendant also challenged whether it was a work of craftsmanship on the basis that the current version of the WaterRower had most design characteristics based on technical requirements, leaving the designer with very little free choice in relation to the machine’s overall design.
Having reviewed earlier cases, the court rejected the argument that the WaterRower machine was not capable of being a work of artistic craftsmanship:
- “Artistic” – whether or not there is artistry will in part depend on the evidence in relation to the artistic intention behind a product’s creation and here there was sufficient evidence that the WaterRower’s creator had a clear artistic intention when creating the WaterRower, intending the machine to have a similar emotional connection with the user as would be the case with a work of art or furniture;
- “Craftsmanship” – the judge quickly dismissed the argument that there was no craftsmanship because the WaterRower machine was outsourced for manufacture – the judge stated that it was not necessary to show that it was the work of a single person.
As a result of the above, the Defendant’s application to strike out WaterRower’s claim was rejected.
Implications of the case
Although the judge accepted that the English caselaw on the definition of “artistic craftmanship” is not clear and is open to some doubt, he nonetheless accepted that the subjective intent of the creator was a relevant factor in deciding whether an object was artistic; although the earlier cases indicated that having eye-appeal was not enough to be artistic, the cases did not explain what the additional ingredients were. In addition, the recognition from third parties that an item had artistic appeal could also be important in deciding that an object was artistic in nature.
In relation to whether the rowing machine was a work of craftsmanship, earlier case law indicated that this would normally be assumed by the courts where:
- the creator took pride in his/her work;
- the creator was not a slavish copier of other items (a “jobbing tradesman” in the words of the court);
- the products were of high quality/finish.
In the current case, there was evidence that the creator of the WaterRower machine had studied naval architecture, built boats and that a high-quality product was created. The machines, therefore, were works of artistic craftsmanship and enjoyed copyright protection.In order to boost the chance of having products protected as works of artistic craftsmanship, it is important that (i) the creators of the products have documentation recording the fact that part of the aim is to create an artistic work and (ii) the products are original in some sense and finished to a high quality.
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