It has arrived! We doubted that the WaterRower v Liking judgment [2024] EWHC 2806 (IPEC) would ever materialise but finally, after almost 16 months(!), the decision in the WaterRower case has been handed down.
Waiting for WaterRower
For those who can't remember what they were doing in July 2023, the court had been asked to consider whether WaterRower Ltd's water resistance rowing machines qualify as "works of artistic craftsmanship" under the Copyright, Designs and Patents Act 1988 (CDPA). The claimant, WaterRower, sought to establish that its rowing machines, including the initial prototype, were artistic works. If so, they alleged that Liking Limited's own water resistance rowing machines had infringed these works.
WaterRower argued that the machines were not just utilitarian products but also works of artistic craftsmanship, with their design rooted in the careful aesthetics and functional harmony envisioned by their creator, Mr John Duke. They claimed that the machines had distinct artistic elements, including the use of natural wood, designed with inspiration drawn from competitive rowing and traditional boat craftsmanship, aiming to create a natural and visually pleasing experience.
Liking Limited contested WaterRower's claims, asserting that the designs were purely functional and lacked the originality and artistic merit required for copyright protection. They also challenged the inclusion of early prototypes in the scope of the copyright claims, leading to debate over whether these prototypes were adequately identified in the pleadings.
What is a work of artistic craftsmanship?
The correct approach is to address the evidence with an objective assessment and apply the statutory wording, as set out above.
In essence a work of artistic craftmanship requires:
an artistic work; and
that it be made by an expert in the relevant craft.
In the Bonz Test craftsmanship and artistry are stated as separate requirements, albeit as conjunctive requirements. The rephrased test requires the artist to "produce something which has aesthetic appeal". In this context I understand that such aesthetic appeal is not to be limited to "eye appeal".
The judge ultimately found in favor of Liking Limited, ruling that WaterRower's rowing machines did not qualify as works of artistic craftsmanship.
"While the WaterRower machines exhibit certain aesthetic features, these are predominantly driven by functional considerations rather than artistic ones."
This observation was central to the court's determination that the machines could not qualify as "works of artistic craftsmanship." As such, no copyright subsisted in the works, and Liking Limited did not infringe any copyright by producing and selling their machines.
What does this mean?
There has been a trend in recent years for litigants to rely on copyright in an extremely expansive way in relation to functional products which no longer have design protection. It is to be hoped that some of these more speculative claims will be reconsidered in light of this decision.
This case highlights the challenges of obtaining copyright protection for products that serve a primarily functional purpose, even if they incorporate aesthetic elements. It is also a helpful reminder of the importance of clearly defining the scope of copyright claims, particularly when dealing with iterative designs and prototypes.
The bottom line is that for a work to qualify as a "work of artistic craftsmanship," the artistic elements must be more than incidental to its function.
To find out more about the issues raised in this blog contact Rosie Burbidge