Can you copyright a rowing machine?

If you’ve spent any time in night markets in New Zealand or elsewhere, you’ll likely have seen ‘Lucci’ bags, ‘Abidas’ sneakers, and $10 ‘authentic’ football jerseys. Product designers hoping to prevent unauthorised reproductions like this can try their luck under copyright law, although how successful they are will depend on whether the product or item in question fits easily into one of the law’s categories.

But what if you want to protect your work from being reproduced and it doesn’t fit easily into one of the law’s categories? You could try the catch-all category called ‘works of artistic craftsmanship’, which is an undefined category but which the law says is not one of the other types of artistic works such as photographs, sculptures, collages, models, or buildings/building models. Courts in New Zealand, Australia and the UK have had to grapple with this aspect of the law in relation to the copying of handbags, yacht moulds, and even a walk-through maze experience.

In New Zealand, it can be particularly helpful to fit the work into this category if you have ‘industrially applied’ it; that is, the design has been applied to more than 50 articles, or a 3D copy is made, and the goal is commercial sale.Other ‘artistic works’ – photographs, sculptures, collages, etc – would only get 16 years of copyright protection in that context. However, a work of artistic craftsmanship gets a further nine years of protection against unauthorised reproduction.

But the cases from these jurisdictions are not that clear on what artistic craftsmanship means. A recent decision of the Intellectual Property Enterprise Court in the UK, Waterrower v Liking, could bring some welcome clarity to designers, judges and intellectual property practitioners in New Zealand.

Waterrower, a UK-based company, is a designer and retailer of exercise equipment and, as its name implies, produces water-resistant rowing machines. In a trial beginning in July 2023, Waterrower claimed its rowing machines were works of artistic craftmanship under the UK’s copyright legislation, and that Liking Ltd had substantially reproduced Waterrower machines to make Liking’s TOPIOM rowing machine, infringing Waterrower’s copyright.

Liking Ltd admitted copying, but alleged there was no such copyright over the rowing machines, as they were not works of artistic craftmanship.

The court ultimately focused on the initial Waterrower prototype from which the company’s other machines were developed. Waterrower claimed the prototype was a work of artistic craftsmanship; its original WaterRower machine was designed by John Duke, an engineer and former competitive rower.

The court was not convinced. Duke was clearly skilled and designed a prototype of considerable elegance and beauty, but there needed to be something more ‘artistic’ about the prototype to qualify as a work of artistic craftsmanship. Duke simply wanted, according to the court, to “create a rowing machine with a sensory and visual experience that was different to other rowing machines at that time”, and one that would succeed commercially.

The court agreed that no copyright subsists in the rowing machines, including in the prototype, so Liking Ltd didn’t infringe any copyright. What is valuable and significant about the case for New Zealand designers, judges and Intellectual Property practitioners is that it distils confusing, unclear prior case law on artistic craftsmanship into an accessible, 11-point list. The following three points are particularly helpful:

• You don’t need to assess the merits or quality of a work to show it’s one of artistic craftsmanship: it just needs to be artistic in some way;
• The court can use any evidence it considers appropriate to decide this matter, including expert evidence;
• We shouldn’t be too eager to shut out works from the artistic craftsmanship category just because the work’s design fulfils a function (for example, a handbag having a strap is necessary to allow people to carry it).

Of course, as this is a UK case New Zealand courts aren’t bound to follow its rulings. The main New Zealand legal precedent remains the 1994 Bonz v Cooke decision where the High Court decided that hand-knitted woollen sweaters and cardigans with dancing lambs, ski kiwi and golfing kiwi designed by Bonz were works of artistic craftsmanship, and that a former Bonz employee, Mrs Cooke, had infringed copyright in these designs by making and selling cardigans and sweaters with similar designs.

Also, if the Waterrower case was heard in New Zealand, the company could have claimed the prototype was a ‘model’, a category that doesn’t exist in UK copyright law but is an ‘artistic work’ in New Zealand. A model doesn’t need artistic quality to be protected – so it’s possible Waterrower could have argued the prototype was just that, rather than trying to show Duke produced something with a difficult-to-define ‘artistic’ quality.

However, designers, judges and IP practitioners will still likely find the Waterrower case influential for future artistic craftsmanship disputes in New Zealand. The principles will be helpful where designers’ works can’t be easily placed within statutory categories, but they still want copyright protection. Waterrower gives us another example of what is ‘artistic’ and what is not – and that the more central the function is to the work (like a rowing machine), for example, the less likely it is to be categorised as a work of artistic craftsmanship.

These principles won’t necessarily stop ‘Lucci’ bags or ‘Abidas’ sneakers from being sold at night markets. They do, however, give designers more clarity about whether they can enforce New Zealand copyright against knockoffs, and can help judges and IP practitioners more easily resolve such disputes when they arise.