Yes…But is it Art?[1] – When IP rights can protect your creation
Rhys Jarman, Head of IP, Technology and Manufacturing Disputes at Wright Hassall LLP shares his advice
The traditional notion of art has always been controversial, particularly when the status of an everyday object is elevated to that of a high-priced artwork. As anyone subject to cocktail party chatter knows, when Duchamp presented his ubiquitous porcelain urinal to the world[1], he was challenging the idea of what we regard as art and simultaneously escalating the value of his “work”. Aspects of this debate were recently echoed in a case about a beautiful fitness product, the WaterRower, that had been copied by a competitor. Design rights, copyright, and other intellectual property (IP) rights may be used by businesses to protect the value of their beautiful products, but each of these has its limitations, and sometimes copyright protection is only possible if courts agree that these products are art.
The WaterRower case[2]
In the 1980s, John Duke, an American engineer and keen competitive rower, began working on ideas for a home rowing machine that replicated the experience of rowing in a boat, including the sound and resistance of water. He wanted to create something beautiful, that users would value like a favoured piece of art or furniture. His design, made of wood and involving a water flywheel, became a prototype, and in 1987 a US patent application was made. The WaterRower was initially displayed at various boat shows and its positive reaction resulted in Mr Duke and two partners forming a company and beginning to market this high-quality fitness equipment.
Over the next decades the prototype WaterRower had various developments as it increased in popularity amongst fitness enthusiasts who appreciated its unique benefits. The business became a global fitness brand, with a presence in several countries, including the UK. The WaterRower featured in design publications and on television in the US and the UK, was on display in the Design Museum in London, and was recognised by the Museum of Modern Art in New York as an iconic design.
In time, the patent expired. By 2019 a Hong Kong registered company, Liking Limited began successfully retailing water resistance rowing machines in the UK under the name TOPIOM. It admits that these are copies of the WaterRower machines. WaterRower believed that this infringed its copyright, which had automatically arisen when its machine was created. However, Liking said that the WaterRower was not subject to copyright protection and therefore it had not infringed any right. WaterRower took the matter to court.
What the court decided
Although the Intellectual Property Enterprise Court appreciated the originality of the WaterRower and its high-quality design, and acknowledged that it was aesthetically pleasing to much of the public, it ultimately agreed with Liking. To benefit from UK copyright, the WaterRower machine had to be a work of “artistic craftsmanship”, and it did not meet this requirement.
Why did the court decide this?
The court analysed both UK and EU legislation and cases and decided that to be a work of artistic craftsmanship in the UK the WaterRower had to be more than original and aesthetically pleasing. There was no indication that it was “the result of a mind with a desire to produce something of beauty which would have an artistic justification for its own existence”[3]. Although it may have met the test in the EU, where the main requirement was originality, the WaterRower was fundamentally “a commercial development, chosen to achieve Mr Duke's business goals of creating a commercially successful rowing machine with a design of aspirational sensory impact.”[4] It was not protected by copyright.
Other beautiful products that are not art
The WaterRower is not the only beautiful, iconic product that courts have felt is not art. Earlier in 2024, the Intellectual Property Enterprise Court ruled that while a company that retrofitted AGA cookers with an electric control system was infringing the AGA Rangemaster trade mark, it was not a copyright infringement as the AGA control panel drawing that was copied was a design document for the AGA cooker, which was not an artistic work. Many AGA owners may would disagree.
Similarly, in February 2025 a German court ruled that Birkenstocks sandals are not works of art capable of copyright protection. The original designer, shoemaker, Karl Birkenstock, born in the 1930s, is still alive, but some of his sandals no longer enjoy design protection, which does not last as long as copyright protection. So, the business attempted to protect the sandals under copyright law. To do this, the footwear had to be classified as art. The court was not convinced. Art and artistic craftsmanship are, it seems, in the eye of the beholding court.
What could WaterRower have done to protect itself?
There are various IP rights available to designers and inventors to protect their works and their businesses, such as copyright, registered designs, unregistered design rights and patents. All may be relevant to the same article. We may therefore wonder why WaterRower chose to rely on copyright – an unregistered right? Sometimes the issue may be cost as there are vastly different costs involved in securing different IP rights. In this case the main problem was time. The work had been created in 1987. What rights still applied in 2019?
Design rights, which are intended to protect the look of a work, can exist even if not registered. But UK unregistered design rights only last 10 years after the work is first made available (in the EU this is only 3 years). Registered design rights are fairly quick, easy, and low cost to obtain, but these last for a maximum of 25 years, if renewed in 5-year periods.
A patent does not protect the look of a product, but instead how that product works. It takes much longer to obtain the grant of a patent, and it is a much more expensive process. Even if a UK patent had been obtained for the WaterRower it could only have been renewed for a maximum of 20 years. Notably, the WaterRower was only copied upon the expiry of its US patent.
Copyright of an artistic work exists automatically and is protected for 70 years after the creator’s death. By 2019, WaterRower was able to continue using a trademark to protect its brand, but any patent or design protection had expired. Establishing that the product continued to have copyright protection was therefore key to WaterRower being able to protect its beautiful machines. The fitness rowing world knows and understands the difference between a true WaterRower and its cheaper Topiom look-a-like. But ultimately, to prevent these being sold in the UK, WaterRower needed to convince the court that it was art and therefore that it was protected by copyright. It may appeal this judgment, but it can’t be sure to find a more sympathetic art critic in the next court.
What does this mean for your business?
The WaterRower story has several lessons for UK businesses that make beautiful and artistic products:
- Make use of all the IP rights reasonably available to you as soon as possible. We all hope that our products will be popular forever, but to secure certain IP rights these must be registered within strict time periods. Although your beautifully crafted product may be protected by copyright, registering other applicable IP rights will protect it for many years.
- Think about EU rights especially if this is a significant market for your product. There is a growing disparity between UK and EU IP rights, especially as regards copyright. Be sure to obtain the protection that you need in both jurisdictions.
- Despite the court’s decision in the WaterRower case, it is still not clear how to determine what amounts to “artistic craftsmanship” especially since we have left the EU. The landscape of UK IP is shifting. The UK IPO is undertaking various consultations with a view to updating and clarifying the law. Watch out for changes in the near future.
Most businesses who have produced beautiful objects need to protect these against copying today. While copyright is a strong and enduring right, unless your product has been produced with artistic craftsmanship – unless it is objectively art – other IP rights may offer better protection. The advice and assistance of professional IP lawyers (even those with little appreciation for art) may be invaluable to you to ensure that the most important aspects of your business are protected.
[1] Marcel Duchamp’s 1917, “Fountain”
[2] Waterrower (UK) Ltd v Liking Ltd (t/a Topiom) [2024] EWHC 2806 (IPEC)
[3] WaterRower para. 182
[4] WaterRower para.182
A version of this article first appeared in Engineering Designer July-August 2025. Engineering Designer is the quarterly journal of the Institution of Engineering Designers.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
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