Artistic works
Section 4 of the Copyright, Design and Patents Act 1988 (“the Act”) defines “artistic works” as: a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality; b) a work of architecture being a building or a model for a building; or c) a work of artistic craftsmanship. Copyright protection will only be applied to artistic works falling within the scope of one of these categories.
The UK judiciary’s approach to interpreting the scope of artistic works has traditionally been conservative. For example, the facial makeup of Adam Ant was held not to be protected by copyright (as a painting) because it was not fixed and could be washed off. A similarly conservative interpretation was adopted by the High Court a decade later, when it considered whether copyright subsisted in a photoshoot scene for an Oasis album as a dramatic or artistic work, sculpture, collage or work of artistic craftsmanship. The court rejected the claimant’s argument that the photoshoot scene was a sculpture or work of artistic craftsmanship since no element in the composition had been carved, modelled or made in any of the other ways in which sculpture is made. The court also determined that the photoshoot scene was not a collage, which involves “as an essential element the sticking of two or more things together”. As such, the claimant failed on the copyright element of the claim.
The court’s approach has evolved, to some degree, over time. In 2019, for example, Aldi (relying on the Adam Ant case) argued that copyright could not subsist in a transitory medium such as the top surface of a facial powder, as there was no fixation and the powder design was merely an ephemeral depression in the powder which would (when used) disappear. The judge disagreed, noting that there is no reason why a design embossed into powder cannot be subject to copyright protection as an artistic work, likening this to the creator of a bespoke wedding cake or the creator of a sand sculpture on a beach (both of which would disappear through use / the elements).
Works of artistic craftsmanship
“Sculpture” and “graphic work” have the benefit of being partially defined by the Act. Works of artistic craftsmanship do not, which has resulted in the judiciary grappling with what is meant by “artistic” (and sometimes also “craftsmanship”). The leading case is Hensher Ltd v Restawile Upholstery (Lancs) Ltd, in which the House of Lords held that the prototype piece of furniture at the heart of the dispute (a mass produced couch and armchair) was not a work of artistic craftsmanship holding, broadly, that something “more than eye appeal” was required for the work to qualify as “artistic”.
It is worth noting the decision of the Court of Justice of the European Union (“CJEU”) in Cofomel v G-Star Raw (“Cofomel”), in which the CJEU held that national laws which make copyright protection dependent on artistic value or have an artistic intention requirement are incompatible with EU law. As such, the court confirmed that the only requirement for a design to qualify for copyright protection is originality. The wording of the Act, which references copyright protection “irrespective of artistic quality”, would appear to be in line with the approach in Europe.
It is against that backdrop that the interim decision in the WaterRower case, which suggested a diversion from the European focus on originality, was so interesting. There, the defendant sought to strike out the claimant’s claim for infringement of copyright in the WaterRower on the basis that the WaterRower did not qualify as a work of artistic craftsmanship within the meaning of Section 4 of the Act (and hence, there could be no copyright infringement). Judge Stone, hearing the case, decided that he could not conclude that the WaterRower was not a work of artistic craftsmanship, indicating that the relevant factors for making the determination included whether the creator intended the work to have an artistic purpose (even if that was not the primary purpose) and recognition by others that the work is artistic.
In considering “craftsmanship”, the judge noted that the creator was a craftsman (he studied naval architecture and built boats); was “not a slavish copier or jobbing tradesman”, and had created a high-quality product.
Image of the WaterRower (source: www.waterrower.co.uk)
Although the court was not required to make a determination in relation to whether the WaterRower was a work of artistic craftsmanship (the decision being restricted to whether there was a real prospect of the claimant being able to prove that it was), the case served as an indication that the UK courts remained open to the idea that technical or functional products could be protected as works of artistic craftsmanship. Such an approach would of course be at odds with that of the CJEU in Cofomel, which determined that the only relevant criteria for protection is originality.
After a two day hearing in July 2023, the court determined that the WaterRower was not a work of artistic craftsmanship. This was because:
The judge also offered, “with some hesitation”, a non-exhaustive list of ‘threads’ from previous case law which are relevant when approaching the question of whether a work can be protected as a work of artistic craftsmanship, including:
In view of the above, the IPEC judge determined that the WaterRower was not a work of artistic craftsmanship that whilst the prototype for the WaterRower was original (insofar as the design was the creator’s own intellectual creation), it did not meet the threshold for “artistic” required by UK law. This was irrespective of the fact that it is lauded by those in the design world as being “elegant and artful”, “refined” and as combining innovative design with “a handsome aesthetic”.
The decision offers interesting commentary in relation to the tension between EU jurisprudence, which preclude a consideration of artistic merit when determining whether copyright subsists in a work, and Section 4(1)(c) of the Act which suggests that the question turns of whether the works are “artistic”.
From a practical perspective, this tension is unlikely to be resolved without a decision of the Supreme Court and until then, questions of artistic craftsmanship are likely to turn on their merits. For now, it would appear that for technical or functional products, the “artistic” threshold is very high and therefore creators of such products should not assume copyright protection under Section 4(1)(c) of the Act.
In the meantime, it remains open to WaterRower to challenge the decision of the IPEC and it will be interesting to see what happens next.
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