A Row Over Nothing? - UK High Court Considers Whether a Rowing Machine Can be a Work of Artistic Craftsmanship

Art can often be very subjective and, quite frankly, baffling as to why a particular piece is seen to be 'good' or not. Nevertheless, the law doesn't see things that way, and even works that are less of 'artistic merit' can, and should be protected under various IP rights, since those rights don't discern based on the artistic value of something. You don't often get novel things argued as being works of artistic craftsmanship, but a recent case in the Intellectual Property Enterprise Court had to look at whether a piece of exercise equipment could be one, and therefore protected by copyright. 

The case of WaterRower (UK) Ltd v Liking Ltd (T/A Topiom) concerned an application for strike out and/or summary judgment of a claim made by WaterRower against Liking for copyright infringement, involving a water resistance rowing machine called the WaterRower (pictured here) developed by the company of the same name. In its application Liking argued that the rowing machine is not a "work of artistic craftsmanship" within the meaning of section 4(1)(c) of the Copyright Designs and Patents Act 1988. The main focus on the application was this, as the Defendant admitted that, if copyright were to subsist in the rowing machine, Liking's copying machines will infringe that right. 

Although the case also discusses aspects of the law relating to applications for strike out/summary judgment, for the purposes of this article we will skip this as it is by no means the most interesting aspect of the case. 

Section 4 provides copyright protection for 'artistic works', which includes 'a work of artistic craftsmanship', however, the legislation doesn't provide any definition for what this would include. The UK courts have grappled with this definition before, most notably in the case of George Hensher Ltd v Restawile Upholstery (Lancs) Ltd (helpfully summarized here), which has been interpreted further in Lucasfilm Ltd v Ainsworth. 

In considering the definition of 'a work of artistic craftsmanship' Deputy High Court Judge Stone considered the five speeches given by the Law Lords in the Hensher case. 

Without delving too deep into the particular considerations raised by all of the Law Lords, Deputy High Court Judge Stone disagreed with the Defendant that the WaterRower is not a work of artistic craftsmanship. 

He noted that, as discussed in the Hensher case, "…the intention of the creator was at least relevant to whether or not a work of craftsmanship is artistic", which was also mentioned as the primary test to define a work of artistic craftsmanship. The Deputy High Court Judge also mentioned that, as shown by witness evidence, the creator of the WaterRower, John Duke, did indeed intend to create a rowing machine in which the user has "a welcoming emotional connection, as they would with a piece of art or furniture", which clearly demonstrated an intention to create a work of artistic craftsmanship. 

Despite the Defendant's assertion that the intention needs to focus on the primary intention of the creator of the work (and Mr Duke's intention was to simply create a water resistance machine and nothing else), the Deputy High Court Judge disagreed that this would be enough, by itself, to strike out the claim. He determined that "…so long as the artistic purpose was one of the creator’s purposes, it does not need to be the primary or dominant one". 

There is also evidence that could be adduced that show that the WaterRower was indeed a work of artistic craftsmanship, and, as noted by the Deputy High Court Judge, this would be a matter for a trial judge to decide on the basis of that evidence in any event. 

The Deputy High Court Judge also discussed a number of tests put forward by the Defendant on deciding what amounted to a work of artistic craftsmanship. He, however, refused to decide on which of them was the 'real' test, but nonetheless found that there were real prospects of success of meeting all of the relevant tests. He concluded that the Claimant has real prospects of success in proving that "…the WaterRower has a real artistic or aesthetic quality, beyond simply being appealing to the eye, and that the WaterRower embodies a sufficient degree of both craftsmanship and artistry, with the combination of these two things leading to the end result".

The Deputy High Court Judge then turned to consider the EU copyright law that relates to the matter. The main cases here are Cofemel — Sociedade de Vestuário SA v G-Star Raw CV and Brompton Bicycle Ltd v Chedech/Get2Get. 

In brief, in Cofemel the CJEU considered the potential preclusion of copyright protection over design works which generate a significant aesthetic effect. In its decision the CJEU set out that copyright protects works that fulfil two requirements: (i) the existence of an original object, and (ii) the expression of intellectual creation. This means that the object in question "…must express the “intellectual creation” of its author, ie, the author has made free and creative choices in creating the work". 

However, as specified in Football Dataco Ltd v Yahoo UK Ltd, if the subject matter "…has been dictated by technical considerations, rules or other constraints, which have left no room for creative freedom", it will not possess the requisite originality to be protected by copyright. 

In Brompton, the CJEU had to consider whether copyright applies to a product where its shape is at least in part necessary to obtain a technical result (in the case, a folding bike). In its decision, the CJEU agreed with the position in Football Dataco, but specified that "…in order to establish whether the product concerned falls within the scope of copyright protection… through that choice of the shape of the product, its author has expressed his creative ability in an original manner by making free and creative choices and has designed the product in such a way that it reflects his personality". They also noted that earlier patents, if any apply to have applied to the item in question, will be relevant if they clarify the intentions of creating the shape of that item. In brief, the Court summarized its position as "…that [a] product is an original work resulting from intellectual creation, in that, through that shape, its author expresses his creative ability in an original manner by making free and creative choices in such a way that that shape reflects his personality".

While the position in the UK and the EU are inconsistent, the Deputy High Court Judge nonetheless found that the Claimant would have real prospects of success even in the European context. He noted that the WaterRower: (i) is an original object; (ii) is an expression of Mr Duke’s intellectual creation; and (iii) whilst there were some technical constraints, they are not such that the idea and its expression become indissociable. 

The Deputy High Court Judge did flag that this should be a matter for Parliament of the higher courts to decide and to specify what will amount to a 'work of artistic craftsmanship' and depending on what the judge dealing with the matter decides, the case could very well be appealed to the Court of Appeal for another look. 

The case is a very interesting one and shows that even novel subject matter that one typically doesn't associate with copyright can be one that comes up in litigation. Although the case didn't provide a great deal of clarity on a definition for a work of artistic craftsmanship, it does provide some more discussion and sets the scene for a potential appeal down the line unless the matter settles (or the parties leave it at that following trial).