WaterRower: Has the UK’s approach to ‘artistic works’ in copyright changed?
It seems inevitable that UK copyright law will change at some point. There are growing signs that judges are waiting for a case that requires inconsistencies between EU and UK copyright laws to be resolved. Unfortunately, the recent decision in WaterRower v Liking EWHC 2084 (IPEC) was not that case, despite numerous reports following the ruling that UK copyright law was extended to protect a rowing machine as a ‘work of artistic craftsmanship’ »
The decision, which relates to a de-listing request, did not go so far as to determine whether the rower in question is a work of art and therefore protected by copyright in the UK. Instead, he concludes that it might be possible, but the matter would have to go to trial to be decided. Although this is only an interim ruling, it is interesting and worth reading for any copyright lawyer, as Deputy High Court Judge David Stone provides an analysis of the British position on copyright in artistic works.
The claim concerns alleged infringement of the copyright of the plaintiff’s WaterRower rower by the defendant, Liking Limited (t/a Topiom).
The decision stems from the defendant’s request to strike the claim (or obtain summary judgment) on the ground that the WaterRower cannot be a work of art within the meaning of section 4 of the Law Act 1994 Copyright, Designs and Patents (“CDPA”), where considered under UK or EU copyright law.
The defendant had accepted that if the machine is a work of art, the copyright exists and his machine infringes.
For the WaterRower to be protected as a copyrighted work in the UK, it must fall within one of the categories of copyrighted works defined by law. A work of art is a subcategory of an artistic work.
The water rower
Although this is only a provisional request, it is useful to know a little more about the background and the alleged copyrighted work in order to follow the decision-making process of the judge.
The WaterRower is a rowing machine designed by John Duke between 1985 and 1987. An image of its first iteration is shown below.
Mr. Duke is a former international rower who studied naval architecture. He has also designed and built boats and has a lifelong interest in various forms of wooden arts and crafts. His goal in creating the WaterRower was to recreate the sleek elegance of a Shaker design and create a rowing machine in which the user has “a welcoming emotional connection, as they would with a piece of art or a piece of furniture”.
The WaterRower was recognized as an “iconic design” and even the defendant conceded that the WaterRower is aesthetically pleasing (this is important later).
The rules of procedure allow the Court to strike out a factum if it “discloses no reasonable grounds for bringing or defending the claim”.
The defendant conceded that the motion to strike and the motion for summary judgment would stand or fall together, and therefore the judge only had to deal with the motion to strike, although the judgment briefly referred to the law on summary judgment.
Arts and crafts
Section 4(1) of the CDPA provides that a “work of art” is a protected artistic work. However, it does not provide any further explanation of what the term actually means and so it fell into case law, with the House of Lords decision in Hensher being accepted as the leading UK case to date.
In Hensher, the five judges unanimously concluded that the object in question was not a work of art, but their reasoning in support of this conclusion was different. It has long been recognized that Hensher is not particularly straightforward, and copyright scholars argue over the true principles that can be drawn from it.
The case of the accused
In summary, the defendant’s case was that the plaintiff had no chance of success at trial and that the claim should be struck.
The defendant’s case under UK law was that, in “every view” of one of Hensher’s judges, the WaterRower would not be considered artistic because its aesthetic appeal is not sufficient. The defendant also argued that the product was not a “craft” product. – claiming that the WaterRower was technical with only limited design choice, not requiring the skills of a craftsman.
Regarding the position in EU law, the defendant argued that the WaterRower would clearly fail the tests set out by the Court of Justice of the European Union (“CJEU”) in Cofemel and Brompton because the only The free choice left to the designer was the choice of wood, which they felt was insufficient to make the WaterRower a work of art.
The judge confirmed that because the defendant’s case was that in “every view” of one of Hensher’s judges, the plaintiff would lose – there was (fortunately) no need for him to distill the decision into a simple definition of what could be considered “artistic”.
He analyzed the different opinions and ultimately felt that he was unable to conclude that the WaterRower was unartistic for three reasons:
- Three of the judges in Hensher found that the creator’s intent was at least relevant in determining whether a work was artistic. In WaterRower, there was already evidence that the creator intended the article to be artistic, which the judge considered sufficient to avoid delisting.
- The judge did not feel able to affirm at this stage that the WaterRower would not come under the notion of “work of art”. It should be decided by the trial judge on the basis of the evidence before him.
Four of Hensher’s judges noted that it takes more than visual appeal for a work to be artistic without specifying what “more” was. The judge asked if it could be an intention or an acknowledgment by others. Evidence of both elements is present for the WaterRower and therefore the judge cannot conclude that the plaintiff’s case is hopeless.
- Lord Simon presents a series of examples of works which he considered to be possibly artistic to Hensher and the judge could not say that the WaterRower was less artistic than these examples.
Accordingly, the defendant’s argument that according to Hensher “in every way” the plaintiff has no real prospect of showing that the WaterRower is artistic was rejected.
Moving on to craftsmanship, the judge again considered Hensher, while acknowledging that any comment on that aspect would be obiter. Either way, he felt that based on the evidence he had, he could not conclude that the WaterRower was not a work of art. Mr. Duke was a craftsman, having studied naval architecture and built boats. He had made a high quality product that was initially handcrafted and continues to be partly handcrafted.
It follows that the defendant’s assertion that the plaintiff has no real possibility of establishing that the WaterRower is a work of art under Hensher has failed.
European copyright law
The defendant’s case under EU law was that the WaterRower would not enjoy copyright protection under the principles set out in Cofemel and Brompton.
In the Cofemel case, the CJEU held that there are two cumulative conditions necessary to establish a work protected by copyright: (i) the existence of an original object; and (ii) the expression of intellectual creation.
In Brompton, the CJEU confirmed that functional forms could in principle be protected by copyright, provided that they are original works.
It is common knowledge that there is an apparent inconsistency between UK and EU law, as the UK has closed categories of copyright protection, one of which requires a work to be artistic in order to qualify. . This discrepancy will have to be resolved at some point. However, the judge concluded that he did not need to do so as part of this application. He had already concluded that the plaintiff had a real prospect of success under Hensher and, in his view, the plaintiff also has a real prospect under the test of these two CJEU decisions. He considered it clear that the WaterRower was original and an expression of Mr. Duke’s intellectual creation.
On the facts before him in WaterRower, the judge did not need to resolve the apparent inconsistency between Cofemel/Brompton and the CDPA. However, if the WaterRower had no aesthetic appeal, perhaps he should have considered it “because Hensher’s Law Lords have said that visual appeal is necessary (but not sufficient), whereas Cofemel says visual appeal cannot be required”.
Finally, the defendant presented an argument based on the fact that the decision in Response Clothing was made in error. In Response Clothing (which was post-Cofemel), HHJ Hacon chose to adopt a different criterion, that established in Bonz, which requires skillful workmanship and aesthetic appeal for a work to be a work of art.
However, since the defendant had admitted that it was cosmetic and the judge had already concluded that the plaintiff had a real prospect of demonstrating at trial that the WaterRower met the requirements of Hensher and Cofemel/Brompton, he felt that it does not matter if the requirements of the different tests are not aligned. He also declined to simply “make a finding” so the case could be appealed for further guidance from the Court of Appeal on the matter.
The defendant’s claim was dismissed on all grounds, as the plaintiff’s case was not “doomed” and should not be struck out. However, the judge was careful to reiterate that he was not concluding that the WaterRower is a work of art – merely confirming that it could be and that it will be up to the judge hearing the trial to determine that in due course. .
This judgment again discusses the inconsistencies between the British and European approach to artistic works, but still provides no answer as to how the English courts intend to deal with them. It seems that until there is a case that, on the facts, actually requires the discrepancies to be addressed, they will remain as they are. These types of cases are likely to be rare and in any event it appears to be such a hotly debated topic that any outcome at first instance will be subject to appeal and we may have to wait several more years to get answers.
First published in Kluwer Copyright Blog, October 2022.