Developments in copyright law: artistic craftsmanship in Waterrower v Liking

It’s key to categorise the type of work you are seeking to claim copyright over in New Zealand, the UK and Australia. If your work doesn’t fit a statutory category it will not be protected. The ‘work of artistic craftsmanship’ category is perhaps the most unclear category in copyright legislation in these countries, and can cover strange, novel situations like a walk-through maze experience. But it isn’t a panacea: sometimes works we might instinctively think meet the criteria don’t, like a designer handbag:

Works of artistic craftsmanship carry particular importance in Australia, because unlike most artistic works they can still be protected by copyright even if a design corresponding to that work was industrially applied (i.e. commercially produced for sale/hire).¹ For example, in Australia a design drawing that underlies a product, like a stapler, will effectively lose copyright protection when the stapler is mass-produced. Similarly, UK legislation has circumscribed the copyright protection given to “design documents” used to make 3D products. That is not the case in New Zealand. Instead, industrially-applied artistic works only receive 16 years of copyright protection, but works of artistic craftsmanship receive 25 years.²

Whether a work falls within this category can have massive implications for copyright owners (in terms of the rights they can enforce) and those who use those works (in terms of their liability). How then can lawyers, judges and creators properly determine whether a work is one of artistic craftsmanship? That is precisely the question the Intellectual Property Enterprise Court in the UK faced in Waterrower v Liking.³  There, Waterrower (UK) Limited claimed Liking copied the design of its Waterrower rowing machines to produce a knockoff. Liking admitted copying, but claimed there was no copyright in the Waterrower design. Waterrower claimed this was a ‘work of artistic craftsmanship’, an argument the Court eventually rejected. This judgment provides extremely useful guidance for judges, lawyers, and designers on how to determine whether a work fits into the category.

How to determine whether a work fits this category has been quite difficult. The previous leading UK authority, Hensher Ltd v Restawile Upholstery (Lancs) Ltd, ⁴ was renowned for having a number of confusing and hard-to-reconcile sets of reasoning from the House of Lords. New Zealand’s leading authority, Bonz Group (Pty) Ltd v Cooke,⁵ was somewhat clearer. The dispute involved sweaters with dancing kiwis, animals and other lambs on them. Justice Tipping determined those sweaters were works of artistic craftsmanship, and provided three guiding principles: (a) these types of works need ‘artistic quality’; (b) the artistic quality must be judged objectively in part at least (i.e. not solely on the author’s intention); and (c) the author of the work needed to be an artist and a craftsman (though these can be different people).

These principles still leave considerable gray areas, though. It’s reassuring to know that the IPEC provided future courts, lawyers and creators with a new set of guidance about how to determine whether a work is of artistic craftsmanship or not (paragraph 35. These include:

1. We don’t need to assess the merits or quality of the work. It just needs to be artistic in some way.
2. The Court can draw on any evidence it considers appropriate to determine whether the work is of artistic craftsmanship, including expert evidence.
3. Multiple authors can be authors (i.e. if one person designs as the ‘artist’ and another builds as the ‘craftsman’).
4. We must look at the phrase holistically. We can’t tear ‘artistic’ and ‘craftsmanship’ apart: the work collectively must be one of artistic craftsmanship.
5.  We must not be too eager to use a work’s functional constraints to mean it can’t be a work of artistic craftsmanship. Just because a work fulfils a functional purpose (i.e. use as a tennis racquet, baseball glove, etc) doesn’t necessarily mean it will not be a work of artistic craftsmanship. As long as the design is not ‘wholly constrained by functional considerations’, then could still be a work of artistic craftsmanship.

Applying these principles, the IPEC found the WaterRower prototype design was not a work of artistic craftsmanship. Essentially, the designer had taken great care and skill in designing the prototype with aesthetic quality; but it was ultimately designed to fulfil the purpose of a commercial rowing machine that had a distinct ‘sensory and visual experience’ (paragraph 183) relative to other machines on the market.

The outcome is likely to be instructive for businesses looking to claim copyright over products they are selling. Machine-type items, where the dominant feature is functionality, are less likely to be works of artistic craftsmanship. But works where the visual appeal is central, like the sweaters in Bonz, may be likelier to fit the category.

Importantly, those dealing with similar disputes in New Zealand should bear in mind that the New Zealand Copyright Act 1994 has a specific category of work for ‘model’, which refers to ‘A representation in three dimensions of some projected … material object, showing the proportions and arrangement of its parts.’ New Zealand businesses may simply be able to rely on that category without having to prove the work is one of artistic craftsmanship (which as Waterrower showed, can be challenging).

It’s still the case, however, that these principles usefully reflect, supplement and develop Justice Tipping’s Bonz principles. Accordingly, Waterrower is likely to be very persuasive for future New Zealand cases involving artistic craftsmanship claims. We await the next relevant New Zealand case with great anticipation.
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Judgment available here.

See further Joshua Yuvaraj, ‘Can you copyright a rowing machine?’, Newsroom (5 Dec 2024). 

References

¹ Copyright Act 1968 (Cth), s 77(1).
² Copyright Act 1994 (NZ), s 75(1)(c).
³ [2024] EWHC 2806.
⁴ [1976] AC 64.
⁵ [1994] 3 NZLR 216.