Are works of applied art protected under UK copyright law?

Campbell Forsyth, sitting as a Deputy High Court Judge in the Intellectual Property Enterprise Court (IPEC), has found that a static water resistance rowing machine is not protected by copyright in the UK (WaterRower v Liking [2024] EWHC 2806 (IPEC)). This is despite him finding that it would have been a copyright work under EU law, which for the purposes of this case was still retained EU case law under the European Union (Withdrawal) Act 2018.

The judge said that, despite being under a strong duty to interpret UK law in line with (what was known as) retained EU law, it was not possible to reconcile the two approaches. The EU does not require a work of applied art to be artistic to be protectable, whereas the UK does – to reconcile the two approaches would require the wording of the Copyright, Designs and Patents Act 1988 (CDPA) to have "no meaning".

Legal tension

The Court of Justice of the EU (CJEU) has taken an open approach to which works can qualify for copyright protection (notably in Infopaq, Cofemel and Brompton), ruling that under EU law any work which is the author's own intellectual creation and is expressed in an identifiable manner can be protected by copyright. There is no need for a work to have any aesthetic effect and it does not matter if it may also be protected by design rights. This has led to the CJEU  extending copyright protection to works of applied art, such as clothing and bicycles.

In contrast, under the CDPA, copyright protection is only given to certain categories of works, known as a closed list. This includes original literary, dramatic, musical or artistic works. This closed list in UK law has for many years been in tension with the open approach taken by the EU.

The English courts have previously acknowledged the tension between the two approaches, but reached a conclusion that the outcome would have been the same whether the UK or EU test was applied, and did not decide whether those tests are in fact the same or different.

In most cases, the way the way the courts have done this is by finding that works of applied art can be classified as works of artistic craftmanship, which are included as artistic works under the UK's closed list system.

"Artistic craftsmanship" is not defined in the legislation and the courts have struggled to define it. The House of Lords in Hensher v Restawile Upholstery [1976] AC 64 returned five different verdicts, which later courts struggled to interpret. Later courts turned to the New Zealand case of Bonz Group v Cooke [1994] 3 NZLR 216, which requires an author to be "both a craftsman and an artist." However, both of these cases find that there must be "some artistic quality" to the work, with, arguably, Hensher going further in requiring something beyond "eye appeal".

Two-stage test

As a way forward in this case, the judge applied a two-stage test, using the EU originality test as "a form of gateway" to provide "partial conformity" of UK law with EU law:

1. Does the work pass the EU originality test, that is, does the "subject matter [reflect] the personality of its author, as an expression of his free and creative choices"?'
2. If so, would the work be considered a work of artistic craftsmanship as required by the CDPA in the context of Hensher and the related authorities, including Bonz?

In this case, the judge held that the rowing machine met the EU originality test, but not the UK test as it was not a work of artistic craftsmanship because, under both Hensher and Bonz, it was not artistic.

Proving artistic craftsmanship

In considering the authorities on what amounts to a work of artistic craftsmanship, the judge found that various factors that had been mentioned in the earlier cases could be combined into a multi-factor assessment, although he stressed that no one factor was determinative.

For example, a work of artistic craftsmanship should involve a medium that has been worked with craftsmanship and its appearance should involve artistic expression that is not wholly constrained by function, the craftsman creating the work must be artistic, the court can rely on evidence to form an objective view of the work but the assessment does not require a value assessment of the artistic merits or quality, and mass manufacture of the work does not preclude protection.

That being said, in this case, the judge seemed to place heavy emphasis on the designer's goal of "creating a commercially successful rowing machine with a design of aspirational sensory impact" as pointing away from the work being a work of artistic craftsmanship. He concluded that it was not the designer's intention to "create a work that went further, one where the craftsmanship in its creation was artistic".

Osborne Clarke comment

Assessing whether a work of applied art is protected by copyright in the UK is a particularly important question because of the longer term of protection that copyright provides over, for example, design rights or patents.

The WaterRower decision attempts to tackle the tension between UK and EU law in this area but, in doing so, uses the more flexible EU test as a "gateway" to applying the stricter UK test, which de facto applies the higher standard of the UK test. He is the first judge to go so far as to say that the statutory wording of the CDPA cannot be reconciled with the EU approach.

The case concerned matters occurring before the end of 2023, and, as a consequence, the Retained EU Law (Revocation and Reform) Act 2023, which has repealed the rules regarding the supremacy of EU law, did not apply. This is why the judge had a strong duty to interpret UK law in line with CJEU case law on the protection of applied art. For matters occurring after the end of 2023, the principle of supremacy of EU law no longer applies, which might strengthen the argument that the interpretation of the artistic craftmanship category under UK law should not be stretched to cover works of applied art that might not fall within the natural meaning of those words.

However, WaterRower is only a first instance decision from the IPEC and it was highly fact specific. It does not set a general rule that works of applied art are not protectable by copyright in the UK and many may still be considered to be works of artistic craftmanship or some other category of works protected by UK copyright law (most notably sculptures). And, crucially, the decision does not affect the ability to enforce copyright in the EU, even if that is harder to do (or potentially not possible) in the UK.

Despite the WaterRower decision, this area of law still lacks clarity and guidance from a higher court is needed. The Court of Appeal or Supreme Court could choose to affirm the EU law approach (despite the statutory tension) or even decide to diverge from it using their case law divergence powers in the European Union (Withdrawal) Act 2018. Until we hear from a higher court, the tension between the UK and EU approaches will persist.

Nonetheless, this decision is useful for those defending against copyright infringement claims relating to works of applied art. It also helpfully collates guidance on crucial factors in the "artistic craftsmanship" assessment. The judge acknowledges that relevant evidence from experts, views of relevant parts of the public, and of the intention of the authors may feed into the assessment, which those seeking to enforce copyright could adduce to try to overcome the copyright subsistence hurdle.

Laura Henderson, trainee solicitor at Osborne Clarke, assisted in producing this Insight