What is artistic craftsmanship? Further copyright musings

Victoria Watt

Victoria Watt

Associate

It is often said that beauty is in the eye of the beholder.  In copyright matters, it is the eye of the presiding judge which determines the meaning of “beauty”. Sitting as a deputy High Court Judge, David Stone has recently pondered the definition of “artistic craftsmanship” in the case of WaterRower (UK) Limited v Liking Limited (T/A Topiom). This was not the final trial of the claim but an application within the proceedings to strike out the claim on the basis that a rowing machine cannot benefit from copyright protection.

The case revolves around the iconic WaterRower, debuted in 1987 by Mr John Duke. The machine was subject to a US patent, which has long since expired, and is now in its eighth iteration. It is showcased in the Museum of Modern Art, the Conran Shop, frequently in various design and lifestyle magazines/TV shows, and is on display in the Design Museum in London.

The Defendant has sold a replica of the latest version of the WaterRower since 2019. WaterRower claims infringement of copyright. The Defendant admitted that if the WaterRower was a work of artistic craftsmanship, then copyright subsists, and their machines do indeed infringe. However, the Defendant applied to the court to strike out the claim on the basis that the WaterRower is not capable of attracting artistic craftsmanship; and also counterclaimed for declaration of non-infringement.

Topiom argued that the WaterRower was not capable of attracting artistic craftsmanship owing to its technical design, which was now outside the scope of patent protection, and because its creation lacked skilled craftsmanship.

The judge disagreed. Whilst stopping short of declaring the WaterRower to be a work of artistic craftmanship (as required by the Copyright Designs and Patents Act 1988 in order to be granted copyright protection) as he felt that this was a determination to be found by the trial judge, he nevertheless held that the Claimant had “real prospects of establishing that the WaterRower is a work of artistic craftmanship”.

He held that the WaterRower could amount to a work of artistic craftmanship for the following reasons:
  1. Whilst there is no “comprehensive definitive interpretation” of artistic, Lord Kilbrandon in the case of Response Clothing held that the “conscious intention of the craftsman will be the primary test of whether his product is artistic or not”. The judge held that whilst it might be the primary test, artistic intent didn’t need to be the primary purpose of the creator.
  2. Further, the judge could not conclude that the rower was not a work of craftsmanship. He felt that the WaterRower was “a high-quality product” as it had originally been made by hand and still had elements that required “manual dexterity”.
  3. In addition, he held that the creator had worked within the parameters set by a water-based rowing machine, but had utilised the freedom within the design to create something which “reflect[ed] his personality” and part of his intent was to create a functional object that was also clearly desirable from an aesthetic perspective.
The judge refused to be drawn into the EU copyright vs. UK copyright debate (which I will save for another day) by stating that it wasn’t an issue in the matter before him. He also refused to strike out the claim and has ordered the parties to prepare for trial.

We will have to wait for the trial to see whether the rower can be regarded as a work of artistic craftsmanship but if it does, it will join the ever diversifying group of objects that have been found to be protected by copyright.

For further advice on copyright related matters, please get in touch with our intellectual property team and we can discuss with you the best strategy to protect your assets.


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