Shifting currents: the WaterRower case and the future of copyright protection for design

The High Court has delivered a long-awaited judgment in a case relating to copyright protection for a wooden rowing machine, which relates to works of artistic craftsmanship in UK law.

In 2022, an interim decision by the Intellectual Property Enterprise Court (“IPEC”) suggested that a wooden rowing machine might qualify for copyright protection. However, the High Court has now ruled the product insufficiently “artistic” to qualify for copyright protection under UK law.

This decision represents a significant turning point as the High Court navigates the contrasting approaches to copyright protection for applied art under UK and EU law. The ruling signals a shift towards the UK’s more restrictive stances, making it more difficult for designers of three-dimensional works (that are not sculptures) to rely on copyright protection.

The background

Designed by John Duke, a former US professional rower with a background in boat design and carpentry, the WaterRower is a water resistance rowing machine. Duke intentionally crafted the design to create an emotional connection with users. WaterRower Limited, the manufacturer, claimed copyright protection for the design of the machine.

However, Liking Limited (trading as TOPIOM), a competitor, was accused of copying substantial design elements of the WaterRower. Liking admitted to copying the design but denied infringement, arguing that, since the patent had expired, no other intellectual property rights were protecting the WaterRower.

The central issue in the case was whether WaterRower could be classified as a “work of artistic craftsmanship” deserving of copyright protection or if it was merely a functional machine without any such claim.

The Court’s decision

The High Court ruled that, while the WaterRower had aesthetic appeal, it was insufficiently “artistic” to qualify for copyright protection under UK law. The court found that the design was more commercially driven than artistically motivated.

While Mr Duke was acknowledged as a skilled craftsman, the court concluded that his creation, though aesthetically pleasing, lacked the level of artistry for copyright protection under UK law.

However, the court also determined that the first prototype of the WaterRower would qualify for copyright protection under EU law, which has a more lenient approach to applied art.

What this means for designers and creators?

• Copyright protection in the UK: This decision raises the bar for what qualifies as a “work of artistic craftsmanship” in the UK. Going forward, designers of functional objects like machinery, furniture, or sporting equipment may find it harder to use copyright as a means of protection. UK law will require that the craftsmanship itself – rather than just the design – be considered artistic. This shift may prompt designers to explore other forms of intellectual property protection, such as design rights or patents.
• Copyright protection in the EU: The EU approach, in contrast, remains more flexible, offering broader protection for works of applied art. As long as the design is original, it may be eligible for copyright protection, irrespective of its functionality. This approach could enhance the commercial value of industrial or functional designs for EU-based creators.
• Cross-border IP strategy: The divergence between UK and EU copyright laws means that designers and businesses operating in both jurisdictions must carefully tailor their intellectual property strategies. A design protected by copyright in the EU may not enjoy the same protection in the UK, necessitating additional forms of protection such as registered designs to cover both markets.
• Impact on innovation: The UK’s stricter requirements and higher threshold may discourage some creators from relying on copyright as their primary form of protection, prompting them to seek alternative protections. This may limit the ability of designers to use copyright as a quick and effective tool for protecting their intellectual property. Meanwhile, the EU’s broader approach may encourage greater innovation, as creators will be more confident that their original works will be protected by copyright.

Looking ahead

This ruling, while complex, could have significant long-term implications for the future of copyright in design. It remains to be seen whether WaterRower will appeal the decision but, for now, this case highlights the growing divide between UK and EU approaches to copyright protection, and the importance of designers understanding the nuances of intellectual property law in both jurisdictions.

Hamlins can help determine whether your product is likely to qualify for copyright and/or trade mark protection. We can also assist with UK, EU and international trade mark applications to help you adopt a global perspective for your brand protection strategy.

Get in touch to find out how we can help.