Case No. IP-2022-000001

A person who only wants, or has only room for, one of a particular kind of household object may be willing to pay more to get one which he regards as artistic; if a work of craftsmanship it is none the less of artistic craftsmanship because his primary purpose is to get something useful.”36.He further held that eye appeal is not enough to establish a work of artistic craftsmanship: “looking nice appears to me to fall considerably short of having artistic appeal” (at page 79). 37.Lord Morris of Borth-y-Guest held that “in its place in the phrase “work of artistic craftsmanship” the word “artistic” will be well understood” (at page 81). He was disinclined “to formulate any kind of judicial definition of a word which needs no such aid” (at page 81). He emphasised that in order to qualify as “artistic”, a work of craftsmanship needed something more than simple eye appeal. He stated at page 81:“If it is asked whether works which possess distinctive features of design and skill in workmanship or works which possess distinctive characteristics of shape, form and finish all qualify to be called artistic I would say that the word “artistic” calls for something additional and different. If it is asked whether there is artistry if there is an appeal to the eye I would say that something more is needed.[…]In deciding whether a work is one of artistic craftsmanship I consider that the work must be viewed and judged in a detached and objective way. The aim and purpose of its author may provide a pointer but the thing produced must itself be assessed without giving decisive weight to the author’s scheme of things. Artistry may owe something to an inspiration not possessed by the most deft craftsman. But an effort to produce what is artistic may, if forced or conscious, for that very reason fail.”38.So Lord Morris, too, suggested that the intention of the creator may be helpful, but not conclusive, and that something more than eye appeal is required. He went on to hold at page 82 that whether an item was a work of artistic craftsmanship was a question of fact to be decided on the basis of the evidence before the court, and that an intention to attract purchasers through design and shape was not sufficient to show artistic intent. 39.Viscount Dilhorne also did not set out a test or formula – he held, at page 86 “in my opinion, the proper interpretation of the words of the statue does not involve the formulation of any test or the application of any particular formula”. He held that the words “works of artistic craftsmanship” should be given their ordinary and natural meaning: “it is simply a question of fact whether a work is one of artistic craftsmanship” (at page 87). He held that expert evidence may be relevant, but at the end of the day, it was a matter for the judge to decide on the basis of the evidence.40.Lord Simon of Glaisdale set out (at page 89 and following) the background to the enactment in 1911 of the amendment that introduced protection for works of artistic craftsmanship. He discussed the Arts and Crafts Movement, and the furniture of William Morris. He held (at page 90):41.Lord Simon emphasised at page 91 that “works of artistic craftsmanship” was a composite phrase to be construed as a whole, and thus an item had to have both the necessary qualities of being artistic and a piece of craftsmanship. His Lordship went on to give some examples at pages 91 to 92 of things which would qualify as works of artistic craftsmanship, and things which would not:“A cobbler is a craftsman, and those in the Arts and Crafts movement would have valued his vocation as such. But neither they, nor anyone else using the words in their common acceptation, would describe his craftsmanship as artistic, or his products as “works of artistic craftsmanship.” A dental mechanic is a similar example; so is a pattern-maker, a boiler-maker, a plumber, a wheelwright, a thatcher. At the other extreme is the maker of hand-painted tiles. He too is a craftsman; but his craftsmanship would properly be described as artistic and his products as “works of artistic craftsmanship.” In between lie a host of crafts some of whose practitioners can claim artistic craftsmanship, some not—or whose practitioners sometimes exercise artistic craftsmanship, sometimes not. In the former class, for example, are glaziers. The ordinary glazier is a craftsman, but he could not properly claim that his craftsmanship is artistic in the common acceptation. But the maker of stained glass windows could properly make such a claim; and, indeed, the revival of stained glass work was one of the high achievements of the Arts and Crafts movement. In the latter class is the blacksmith—a craftsman in all his business, and exercising artistic craftsmanship perhaps in making wrought-iron gates, but certainly not in shoeing a horse or repairing a ploughshare. In these intermediate—or rather, straddling—classes come, too, the woodworkers, ranging from carpenters to cabinet-makers: some of their work would be generally accepted as artistic craftsmanship, most not. Similarly, printers, bookbinders, cutlers, needleworkers, weavers—and many others.”42.Further, Lord Simon held that originality of design and appealing to the eye as a commercial selling point are not sufficient for a work to qualify as a work of artistic craftsmanship. At pages 94 to 95, Lord Simon held that whether or not a work is a work of artistic craftsmanship is a matter for evidence, including evidence from “acknowledged artist-craftsmen” – that is, expert evidence. He also considered the intention of the creator to be relevant: “It is probably enough that common experience tells us that artists have vocationally an aim and impact which differ from those of the ordinary run of humankind. Given the craftsmanship, it is the presence of such aim and impact—what Stewart J. called “the intent of the creator and its result”—which will determine that the work is one of artistic craftsmanship.”43.Lord Kilbrandon also held (at page 97) that a “comprehensive definitive interpretation” of “artistic” was impossible. Lord Kilbrandon did not consider that expert evidence would assist, but rather he held that the question is one for the judge to determine. He held that the “conscious intention of the craftsman will be the primary test of whether his product is artistic or not”. 44.It is not necessary for me to reduce their Lordships’ speeches to a snappy definition of “works of artistic craftsmanship”. For present purposes counsel for the Defendant argued that “on any view”, I am in a position now to conclude that the WaterRower is not “artistic”. I reject that submission for three reasons. i)First, Lords Reid, Morris and Kilbrandon all held that the intention of the creator was at least relevant to whether or not a work of craftsmanship is artistic. Indeed, Lord Kilbrandon held that it was the “primary test”. In this case, there is already some evidence as to Mr Duke’s artistic intention, and the Claimant has sought permission to adduce a further witness statement from Mr Duke for the purposes of the trial. The Defendant has said in the inter partes correspondence that it wishes to cross-examine Mr Duke as to his intentions. This evidence, relevant to three of the five Law Lords in Hensher, is therefore the very thing which the authorities emphasise ought to cause hesitation prior to striking out a claim. The evidence before me is that Mr Duke intended to recreate the sparse elegance of a Shaker design and to create a rowing machine in which the user has “a welcoming emotional connection, as they would with a piece of art or furniture”. This evidence is, in my judgment, sufficient to avoid a strike out. There is in any event likely to be more to come. (Several of the Defendant’s submissions appeared to suggest that it is the primary purpose of the creator that is relevant, and that here Mr Duke’s primary purpose was to create a water resistance rowing machine to simulate the feeling of rowing on water, through both sensation and sound. Even assuming that that was Mr Duke’s primary purpose, I do not consider that to be grounds for striking out the claim: I cannot discern in any of their Lordships’ speeches any indication that it is the primary purpose of the creator that matters. As I read their Lordship’s speeches, so long as the artistic purpose was one of the creator’s purposes, it does not need to be the primary or dominant one. To take one of Lord Simon’s examples, clearly, a set of wrought-iron gates would be rejected by the purchaser if they did not open, or did not keep people/animals in or out – those are amongst the primary purposes of gates. But gates can still be works of artistic craftsmanship, even if their artistry is secondary to their usefulness.)ii)Second, I cannot say at this stage of proceedings that the WaterRower would not fall within the notion of “work of artistic craftsmanship” as described by their Lordships. I do not consider that it is for me to say whether or not their Lordships, if sitting today, would find that the WaterRower is a work of artistic craftsmanship – that is not the relevant test, as each of their Lordships emphasises. It is a matter for the trial judge on the basis of the evidence. As things stand, even leaving aside the further evidence that may be adduced at trial, I cannot say that the Claimant has no real prospects of proving that the WaterRower is artistic. The Defendant conceded that it has eye appeal, but said that was not enough. As I read the speeches of Lords Reid, Morris, Simon and Kilbrandon, whilst requiring more than eye appeal, none of their Lordships sets out what that “more” is, and counsel for the Defendant did not. Perhaps for some of their Lordships (particularly Lord Kilbrandon) it was the intention of the creator. Perhaps it is recognition by others that the work is artistic (and hence the suitability of expert evidence). In this case, even on the evidence before me at this strike out stage, both are present – in Mr Duke’s intentions as creator and in the recognition from MOMA and others. Whilst counsel for the Defendant sought to minimise the weight of the recognition from MOMA and others on the basis that it did not expressly say that the WaterRower was “artistic”, it seems to me that this evidence is probative (for present purposes) in two ways. First, for what it says: for example, the Galerie article describes the WaterRower as being “masterfully crafted” and the MOMA website describes it as “looking artful”. Second, the presence of the WaterRower in the MOMA shop indicates that the curators of the MOMA shop consider it to be worthy of inclusion – that is, they recognise that it belongs alongside the other artistic works celebrated and sold by MOMA. No doubt further such evidence will be adduced at trial – but that which is already before the Court means that I cannot say that the Claimant’s case is hopeless. iii)Third, Lord Simon set out a series of examples of works which he considered could be held to be artistic: hand-painted tiles, stained glass windows, wrought-iron gates, and “some of the […] work” of carpenters, cabinet-makers, printers, bookbinders, cutlers, needleworkers and weavers. Although technology has clearly moved on since 1974, I cannot conclude on a strike out basis that the WaterRower is any less artistic in its conception or its appearance than the examples given by Lord Simon. 45.I therefore reject counsel for the Defendant’s first argument under Hensher, that “on any view”, the Claimant has no real prospect of proving that the WaterRower is “artistic”. 46.Second under Hensher, counsel for the Defendant argued that there are no prospects of the Court finding that the WaterRower is a work of craftsmanship. I also reject that finding. As counsel for the Defendant conceded, Hensher was not a case about craftsmanship – the defendant in that case had already admitted that the furniture in issue was a work of craftsmanship. Counsel for the Defendant conceded that any comments from the House of Lords on craftsmanship were “strictly obiter”. 47.In any event, on the basis of the evidence before me, I cannot conclude at this stage that the WaterRower is not a work of craftsmanship. Mann J said this in Lucasfilm when discussing Imperial Stormtrooper helmets and armour created by Mr Ainsworth for the STAR WARS films (at paragraph 133):“With those authorities in mind, I turn to the question of whether the Stormtrooper helmets and armour are works of artistic craftsmanship. I am prepared to assume that the ultimate production of these articles was an act of craftsmanship. Mr Ainsworth can fairly be called a craftsman—he produces high quality products and has a justifiable pride in his work. He is not a slavish copier, or a jobbing tradesman. The production of the helmets and armour required the activity of a craftsman to realise the vision of the creators of the film in this respect.”48.The evidence already before me is such that I cannot conclude that the production of the WaterRower was not an act of craftsmanship. There is evidence that Mr Duke is a craftsman – he studied naval architecture and built boats. (Counsel for the Defendant submitted that whilst the evidence may have established that Mr Duke was a craftsman in relation to rowing shells, he could not be considered a craftsman of rowing machines. I reject that submission, not least because many of the parts of a rowing machine are to be found in a shell (including a seat, footrest and runners). Mr Duke has produced a high quality product, which was initially made entirely by hand, and continues to be made in part by hand. He has pride in his work. He is not a slavish copier or a jobbing tradesman. It matters not that the creation of the WaterRower is now outsourced to others – there is nothing in the authorities that requires works of artistic craftsmanship to be the work of a single person, and art practice for centuries, and, more recently, craft practice, have both involved heavy aspects of outsourcing of the actual manufacture. William Morris designed the chairs sold under his name, but he did not make them. 49.I therefore reject counsel for the Defendant’s submission that the Claimant has no real prospects of proving that the WaterRower is a work of craftsmanship.50.Third, counsel for the Defendant relied on the summary in Laddie, Prescott and Vitoria that refers to the interplay of artistry and craftsmanship which the learned authors’ draw from their reading of Hensher. The passage on which he relied is at paragraph 4.37 on page 230: “It is submitted that the answer is as follows. The making of any work of art implies two things, a medium in which to work and a result which is significant because of its visual appearance. In the case of a work of artistic craftsmanship the medium is the working of materials by manual dexterity (craftsmanship); and the visual appearance is significant if it would cause at least some members of the public to wish to acquire and retain the object on especial account thereof: an objective fact, capable of ascertainment.”51.I do not need to form a view on whether or not that test is an appropriate one (or indeed, whether it properly captures the five speeches in Hensher). For present purposes, it is sufficient for me to say that, on the basis of the evidence before me, I cannot say at this stage that the WaterRower has no real prospect of passing the test set out by the learned authors. I have already set out above that the Claimant has a real prospect of proving that the WaterRower is a work of craftsmanship – the evidence is that Mr Duke worked on materials with “manual dexterity”. The visual appearance of the WaterRower is clearly popular – and at least some members of the public have wished to acquire, and indeed have acquired, it. 52.Counsel for the Defendant also relied on an excerpt from Copinger and Skone James on Copyright (18th edition, Sweet & Maxwell) at paragraph 3-155, where the learned authors state:“For a work to be regarded as one of artistic craftsmanship, it should be possible to say that the creator was both a craftsman and an artist. It has been suggested that determining whether a work is a work of artistic craftsmanship does not turn on assessing the beauty of aesthetic appeal of work or on assessing any harmony between its visual appeal and its utility, but on assessing the extent to which the particular work’s artistic expression, in its form, is unconstrained by functional considerations. Accordingly, the more constrained the designer is by functional considerations, the less likely the work is to be a work of artistic craftmanship. It is a matter of degree.”53.As previously, I am unable to say on the basis of the evidence before me that the Claimant has no real prospect of its WaterRower passing this test. Much reliance was placed by counsel for the Defendant on the functional aspects of the WaterRower, and the constraints they place on a designer of a water resistance rowing machine. As Lord Reid made clear in Hensher, a work of artistic craftsmanship can still be useful. And from the examples given by Lord Simon, many of which were practical items, a level of functionality is no bar to a finding of artistic craftsmanship. I have already referred to the example of a set of wrought-iron gates which has a clear utility and aspects of which are dictated by function – the hinges, any lock, the need to keep out people and animals etc. Indeed, many, or perhaps even most, of the choices taken by the blacksmith in crafting the gates will be functional choices, with the decorative elements being those that elevate the work of craftsmanship into a work of artistic craftsmanship. I accept that many of the aspects of the WaterRower have an element of functionality to them – but it is the crafting of something both functional and artistic that the Claimant pleads makes the WaterRower a work of artistic craftsmanship. As Lord Simon said at page 90 when discussing the aims of the Arts and Crafts movement:“Functional efficiency and respect for the worked material would impose its own appropriate form, showing, to quote Lethaby again, that it was “made for a human being by a human being”.”54.I therefore also reject this submission.55.Finally in relation to Hensher, the Defendant’s skeleton argument suggested the following test for something to be protected as a work of artistic craftsmanship:i)The creator should have a conscious intention to produce a work of art. However, this is not determinative;ii)The item must have a real artistic or aesthetic quality, beyond simply being appealing to the eye; andiii)The item must embody a sufficient degree of both craftsmanship and artistry, with the combination of these two things leading to the end result. 56.I do not need to decide whether that test adequately reflects the law of England & Wales. But I can say, without hesitation, that the Claimant has, on the basis of the evidence before me, a real prospect of meeting that test at trial. On the language of the Defendant’s proposed test, i) is not conclusive, so I say no more about it. The Claimant has a real prospect of proving that the WaterRower has a real artistic or aesthetic quality, beyond simply being appealing to the eye, and that the WaterRower embodies a sufficient degree of both craftsmanship and artistry, with the combination of these two things leading to the end result. 57.It therefore follows that I do not consider that the Claimant has no real prospects of establishing that the WaterRower is a work of artistic craftsmanship under Hensher.