Today, Campbell Forsyth, sitting as a Deputy Judge of the High Court, handed down the keenly awaited judgment in https://www.hogarthchambers.com/case-list/waterrower-v-liking-2024-ewhc-2806-ipec/, which deals with the boundaries of copyright law and the difficult legacy of the House of Lords decision in George Hensher v Restawile [1976] AC 64.

The central issue in the case was whether or not the WaterRower rowing machine (pictured) was a work of artistic craftsmanship under Section 4(1)(c) of the Copyright, Designs and Patents Act 1988 (the “CDPA”). To assess this, the Judge had to grapple with the intersection between design and copyright law, looking at the application of copyright to “works of industrial handicraft” and “applied art”.

The Judge ruled in the Defendant’s favour, holding that the WaterRower was not a work of artistic craftsmanship. Whilst the WaterRower was aesthetically pleasing, a commercial success, and of a high quality design, the craftsmanship in its creation was not of an artistic nature. The creator of the Prototype WaterRower, Mr Duke, was not an ‘artist-craftsman’ and there was no “desire to produce a thing of beauty which would have an artistic justification for its own existence” (as per Lord Kilbrandon’s words in Hensher). In addition, the amendments made to the WaterRower models after the Prototype were “workmanlike, practical alternative adaptations” and, as such, could not constitute works of artistic craftsmanship either.

The judgment has also confirmed that there is a conflict between assimilated EU law and the CDPA, which Marleasing cannot cure. The Judge found that, contrary to the decision in Response Clothing Ltd v The Edinburgh Woollen Mill Ltd [2020] EWHC 148 (IPEC), the InfoSoc Directive and the CJEU’s decisions in Cofemel and Brompton, which preclude a consideration of artistic merit, cannot be reconciled with Section 4(1)(c) of the CDPA and Hensher, which require artistic craftsmanship and “more than eye appeal”. This will need resolution by the Supreme Court.
Jonathan Moss and Kendal Watkinson acted for the successful Defendant, instructed by Gunnercooke LLP. Becky Knott assisted with post-trial submissions.