Traditionally, a functional 3D machine would not have been considered to be protected by copyright as work of artistic craftsmanship, with copyright protection for works of artistic craftsmanship being reserved for more conventionally artistic works such as hand painted tiles and stained glass windows. However, in the recent IPEC strike out application of WaterRower (UK) Ltd v Liking Ltd (Waterrower), the courts continue to show signs of adopting a less rigid, more open minded approach as to what can be protected by copyright.
The dispute concerned a piece of exercise equipment called the WaterRower. The claimant, WaterRower UK Ltd (WaterRower UK), brought proceedings for copyright infringement. Although the defendant, Liking Ltd (Liking), admitted to copying the WaterRower, it was argued that the machine was not a work of artistic craftsmanship, and therefore it did not attract copyright protection.
The case law surrounding copyright protection is far from clear. The Judge in Waterrower considered the UK House of Lords decision of George Hensher Ltd v Restawile Upholstery (Lancs) ltd (Hensher), which establishes that in order to benefit from copyright protection, the work must be a work of artistic craftsmanship.
In strike out proceedings, the question is whether the claimant has a reasonable prospect of success in court. If the Judge decides they do not, then their claim is immediately struck out, and there is no trial. Therefore, under Hensher, the Judge had to consider if WaterRower UK would reasonably be able to show that the WaterRower machine has real artistic or aesthetic appeal, and was the product of sufficient craftsmanship. The Judge concluded that WaterRower UK did have a reasonable prospect of success.
It was found that one of the designer’s aims was to make the WaterRower artistic; it did not have to be the designer’s primary aim. The Judge was also influenced by the fact that the WaterRower had been featured in various publications and on TV, and is on display at multiple prestigious design and art museums, and as such is recognised as an iconic design. Further, the designer had studied naval architecture, which contributed to his status as a ‘craftsman’.
The Judge also considered the position under EU law. Liking argued that the WaterRower would also fail to attract copyright protection under the Court of Justice cases of Cofemel -Sociedade de Vestuário SA v G-Star Raw CV and SI and another v Chedech/Get2Get (Brompton). These cases provide that in order to attract protection, the designer must have been able to exercise free and creative choices when designing the WaterRower. In other words, the design must not be dictated totally by its function. There must be enough freedom so that the designer can show their own personality within the design.
Again, the Judge concluded that WaterRower UK had a real prospect of succeeding under this test. The Judge was particularly influenced by the evidence provided by WaterRower UK showing various different designs of rowing machines, which demonstrated that the design is not solely dictated by the function.
Because the Judge considered that it was possible for the claimant to show that the WaterRower satisfies both the UK and EU tests for copyright protection, it was therefore not necessary to consider the inconsistencies between the two tests.
Although this decision concerned strike out and therefore the Judge did not categorically decide that the WaterRower was a work of artistic craftsmanship, the notion that it could not possibly be a work of artistic craftsmanship was rejected.
The decision is an important indication that the courts will consider broadening the scope of what is protected under copyright, stretching it beyond what is conventionally considered to be works of artistic craftsmanship.
Written by Laura Gathercole – Trainee Solicitor
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