What is a work of artistic craftsmanship in UK copyright Law? Insights from WaterRower v Liking

 

For more detailed background to this case, and analysis of what this decision means for the world of design, read on!

 

How is a “work of artistic craftsmanship” protected under UK law?

UK copyright exists in, amongst other things, artistic works, which are protected for the life of the creator plus 70 years. Artistic works include “a graphic work, photograph, sculpture or collage, irrespective of artistic quality”, and they also include “works of artistic craftsmanship” (Section 4(1)(c) CDPA).

 

For a 3-dimensional object, a typical route to protection will be design protection, which has a term of up to 25 years for a registered design or 10-15 years for a UK unregistered design right: notably much shorter than the copyright term. But if a work could be classed as a “work of artistic craftsmanship”, it would be entitled to copyright protection, and hence a much longer term of protection that could outlive design and patent rights.

 

Until 2016, there was a provision under UK law (Section 52 CDPA) that specified that if a work of artistic craftsmanship had been industrially reproduced (i.e. more than 50 copies of the work were made), its term of copyright protection would be limited to 25 years (to match registered design right protection). This Section was repealed in 2016 - with retroactive effect - meaning that a work of artistic craftsmanship that had been created more than 25 years ago, and industrially reproduced, would now be entitled to copyright protection once more. While others would have been free to copy that work before 2016, doing so after 2016 would be an infringing act.

 

The repeal of this Section led to an increase in assertions that particular older works were “works of artistic craftsmanship”, in order to benefit from the longer term of copyright protection.

 

The question of whether or not a particular 3-dimensional work is a “work of artistic craftsmanship” can therefore be critical in determining whether or not a particular work is still protected under UK law, and disputes centred on designs that are more than 25 years old can turn entirely on this question.

 

What is a work of artistic craftsmanship?

There is relatively little case law that deals with this question, and no clearly established “test” for deciding if a work qualifies as a “work of artistic craftsmanship”.

 

The leading case to date is George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976], in which the House of Lords found unanimously that a particular article of furniture was not a work of artistic craftsmanship. While the Lords were unanimous in their conclusions, their reasoning was not uniform, and it is generally accepted that it is hard to identify a ‘principle’ behind the decision that could be applied to other cases.

 

Other relevant decisions are Response Clothing Limited v The Edinburgh Woollen Mill Limited [2020] EWHC 148, in which a particular knitted fabric was found to be a work of artistic craftsmanship, and Lucasfilm Ltd v Ainsworth [2011] UKSC 39; [2012] 1 AC 208, in which Storm Trooper masks were deemed not to be a work of artistic craftsmanship. Neither case established a clear “test”.

 

To add to uncertainty on this issue, the CJEU issued guidance in Cofemel – Sociedade de Vestuário SA v G-Star Raw CV [2019] indicating that for copyright to exist in a work, only two conditions need to be satisfied “First, that concept entails that there exist an original subject matter, in the sense of being the author's own intellectual creation. Second, classification as a work is reserved to the elements that are the expression of such creation…", and that “it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his free and creative choices …", i.e. that there is no requirement for aesthetic appeal or artistry. This guidance was clearly at odds with the requirement under UK law that the work is a “work of artistic craftsmanship”, which sets a higher threshold for the existence of copyright in a 3-dimensional object, and it was not clear how the UK courts would resolve this.

 

Certainty on the question of what constitutes a “work of artistic craftsmanship”, particularly in light of the CJEU guidance, has therefore been lacking, and a decision dealing with this issue has therefore been much-needed.

 

The WaterRower case

The WaterRower was designed in the mid 80s, when an inventor and competitive rower Mr John Duke developed a prototype for a rowing machine that focused on aesthetics. It was hand-crafted from wood, and designed to be a beautiful alternative to aesthetically unappealing rowing machines, and to recreate the feel of outdoor rowing. The design evolved in its early years of development and production, though many of its core design features were unchanged from the first prototype.

 

Liking produced rowing machines that it acknowledged were copies of the WaterRower design, which were sold in the UK.

 

With the WaterRower work having been created in the 80s, design protection would no longer apply: the only protection that could still be in place would be copyright, and this would require the WaterRower to be a “work of artistic craftsmanship”. This was therefore the key question before the court.

 

Request for Summary Judgement Denied

 

Liking had applied to the Court for Summary Judgement, arguing that the work was clearly not a work of artistic craftsmanship, and there was therefore no case to answer (WaterRower (UK) Ltd v Liking Ltd (T/A Topiom) [2022] EWHC 2084 (IPEC)). The Court refused to grant Summary Judgement, on the basis that WaterRower had a real prospect of demonstrating that copyright did exist, so that the threshold for Summary Judgement in Liking’s favour was not met.

 

The case therefore continued to a full hearing, heard by Judge Campbell Forsyth (Deputy High Court Judge).

 

Handling the tension between EU and UK law

 

The Judge recognised that the UK and EU positions could not be reconciled. He took the view that the EU guidance could initially be applied for the purposes of determining whether the work is original, and if it is found to be original, the UK requirement for a “work of artistic craftsmanship” must subsequently be applied. The work would need to meet this requirement of artistic craftsmanship for copyright to exist.

 

The Decision therefore draws a clear conclusion that the higher UK threshold of a “work of artistic craftsmanship” applies in deciding whether copyright subsists in a 3-dimensional work.

 

What exactly are the “works” under discussion?

 

Before it can be assessed whether copyright exists in a work, it must be established exactly what the “work” is. The WaterRower had undergone several design changes in its early years of creation, and the different iterations were documented to different degrees. A first prototype had been produced, but no photographs were available. A patent application had been filed including sketches, and it was generally accepted that these sketches represented the first prototype of the design. The earliest work that was identified was therefore this first “Prototype”, with the drawings of the patent being taken as a depiction of the work.

 

There were various subsequent iterations of the design, evidenced by various sketches and witness statements explaining the differences compared to the Prototype or earlier iterations, and WaterRower claimed that copyright existed in each individual iteration.

 

Does copyright exist in any of the works?

 

For each work: Is the work original?

 

The Judge’s first step in assessing if copyright subsists in the works was to determine, based on the CJEU guidance, if each work was original. It was generally accepted that Mr Duke had created the first design, and that the work reflected “the personality of its author, as an expression of his free and creative choices”. The criteria for originality of the original prototype were therefore deemed to be met.

 

However, for the subsequent iterations, it was deemed deemed that the design changes were minor and did not display sufficient expression of free and creative choices, so that the criteria were not fulfilled.

 

For the original work: is the work a “work of artistic craftsmanship”

 

The key issue at the heart of this case was whether the original Water Rower Prototype was a “work of artistic craftsmanship”.

 

The Judge acknowledged that while Mr Duke did not have a background in a trade associated with craftsmanship, he had used craftsmanship in creating the Prototype. He also acknowledged that a significant section of the public found the WaterRower aesthetically pleasing, and that specialists in the field of design, such as MoMA, recognised the merits of the design. However, he found that this was not determinative, and a work of “artistic craftsmanship” requires more than this, in that it requires “artistry”. Throughout past Decisions this has been phrased in various ways, all of which were quoted in the Decision:

 

• Lord Kilbrandon in Hensher: the work should be the result of a mind with a desire "to produce something of beauty which would have an artistic justification for its own existence".
• Tipping J in Hensher: “for a work to be one of artistic craftsmanship it must, in my judgment, have some artistic quality.”
• Lord Simon in Hensher: "is this the work of one who was in this respect an artist-craftsman?".
• HHJ Hacon in Response: it is necessary to consider if the creator was both: "(a) a craftsman in that he made the Prototype in a skilful way, taking justified pride in his workmanship and (b) was an artist in that he used their creative ability to produce something which has aesthetic appeal.”

 

Ultimately, the Judge found that this came down to a ‘composite question’ of whether Mr Duke had the character of an “artist-craftsman” in creating the work, with those terms being given their “ordinary and natural meaning”. He determined that he did not, and the work is therefore not a work of artistic craftsmanship, and not entitled to copyright protection”.

 

“188. Mr Duke can be considered a craftsman in the context of his creation of the Prototype for the reasons explained. I have found that Mr Duke used his skills to create the Prototype and that it has aesthetic appeal. However, Tipping J explained, in coming to his summary view, that "for a work to be one of artistic craftsmanship it must, in my judgment, have some artistic quality.". I have determined that in his creation of the Prototype, Mr Duke did not have the character of an artist craftsman. I accept the arguments are somewhat circular. This reflects the difficulty in formulating any additional test beyond the application of the statutory phrase.”

 

What does this mean for other cases?

Being a first-instance Decision, and highly-fact specific, it can only go so far in providing guidance for how other cases might be handled.

 

The provisional indication is that the UK Courts are minded to apply the higher threshold of “artistic craftsmanship” in determining if copyright exists in 3-dimensional objects, and not the lower threshold given in CJEU guidance. However, the case may of course be appealed, and if so the Court of Appeal could make a different determination on the application of the CJEU guidance: we will need to wait until any possible appeal is resolved before the situation is completely clear.

 

In this case, the Judge emphasised the difficulty in applying any test beyond the natural meaning of the words “artistic craftsmanship”, and it appears unlikely that a specific test will be provided by the UK courts any time soon. However, a key take-aways from this Decision is that a work of artistic craftsmanship requires more than just “craftsmanship” in its creation, and recognition of its aesthetic appeal or merit: it must also be a work of art, and this is not a trivial requirement. Amongst other factors, the intention of the creator is important.

 

Many designs will satisfy the criteria for craftsmanship and aesthetic appeal, so the question of whether a work goes further than this, and is a “work of artistic craftsmanship” will often be key in determining whether copyright exists. In the end, it all boils down to the question "...but is it art?".

 

If you would like to know more, or need advice on this subject, please contact Emily Weal.

 

Judgement (hosted by Gunnercooke LLP): WaterRower-v-Liking-2024-EWHC-2806-IPEC-Approved-Judgment-11-November-2024.pdf