Artist vs. Copycat

October 29, 2009 9:44 AM

Sculptor creates, copycat copies. We'll settle this in court! Bizarro world court that is... (via Consumerist)

Sculpter John Ungar makes firepits from recycled propane tanks.
Rick Wittrig copies them.
Wittrig sues Ungar to strip him of his copyrights because...

"Defendant's Fire Pits are functional, utilitarian and useful articles that are not subject to copyright protection."

(from Federal Court Filing)

posted by Marky (29 comments total)

I'm not going to say that Wittrig isn't a grade-A jerk, but based on the imagery on the Consumerist article, it doesn't seem like there's much basis for copyright. The first side-by-side comparisons are different (flames versus cactus-looking things?), and the other two are simple, largely generic designs. Wave curls are found all over the place and don't constitute a unique design motif. The third is just a curvy triangular shape cut, hardly unique.

If I needed a firepit made from a recycled propane tank (or a firepit in general), I'd buy from Ungar because his look better and he's the O.G., but the copyright claim seems weak.
posted by explosion at 9:50 AM on October 29

So which of these companies makes the bluest Pepsi?
posted by hermitosis at 9:52 AM on October 29 [1 favorite has favorites]

FirePitThievingTart.com, more like.
Can't agree with explosion (seems appropriate when talking about flames and propane); the Wittrig versions seem clearly derivative in that juxtaposition, and his reported behaviour makes him look all the more like a rip-off artist. But the thrust of the main article's probably right, something a court is best placed to settle.
posted by Abiezer at 9:55 AM on October 29

They're all rather ugly anyway.
posted by Burhanistan at 9:57 AM on October 29

That Wittrig guy seems to lack any original bone in his body. I hope Ungar prevails and gets to sue the shit out of him.
posted by Blazecock Pileon at 9:58 AM on October 29

Wittrig sues Ungar to strip him of his copyrights because...

I don't know if Ungar's copyright claim is valid or not, but that's not a very fair description of the situation. According to the Consumerist article, Ungar sent Wittrig a cease and desist letter, probably hoping to scare Wittrig into stopping the sale of the products in question without having to actually sue him. Wittrig has now responded by asking the court for a declaratory judgment, which is a standard legal response to a cease and desist letter in which the person being accused of infringement can ask the court to decide if the accusations are valid or not. If Ungar didn't want the matter to end up in court, then he probably shouldn't have sent Wittrig a letter accusing him of copyright infringement.
posted by burnmp3s at 10:01 AM on October 29 [1 favorite has favorites]

As the comments from The Consumerist note, Wittrig is advertising/describing his firepits as art. Doesn't that kind of undermine his entire case?
posted by lyam at 10:01 AM on October 29

the Wittrig versions seem clearly derivative in that juxtaposition, and his reported behaviour makes him look all the more like a rip-off artist.

I agree, but my point was that the 2 designs where the rip-off is very clear are also relatively generic. For instance, tons of tables have lion's claw feet. If these guys were making tables out of recycled propane tanks, and both had lion's claw feet, then I'd argue that the latter ripped off the former, but that the former did not have a good copyright claim for the lion's claw foot motif.

Then again, I generally have a weaker support for copyright than the law necessarily does, and I am not a lawyer.
posted by explosion at 10:05 AM on October 29

Those are some really generic designs that I'd expect to see from a firepit sold at Home Depot or something.
posted by wcfields at 10:07 AM on October 29

It seems really sad that Wittrig needs Unger to point him in the right direction.

How hard could it be to come up with something original? Of course, I'm not in the market for a fire pit, and if I was, I'd be looking at something made of rocks, not old propane tanks.

Could handbags, since they are utilitarian in nature also claim exemption from copyright? Canal Street has a loophole if that's the case.

What about designer knock-offs in department stores? Slippery-slope folks.
posted by Ruthless Bunny at 10:14 AM on October 29

The one with the bigger lawyer wins.
posted by HTuttle at 10:17 AM on October 29

I agree, but my point was that the 2 designs where the rip-off is very clear are also relatively generic.
Very true; I think we've settled this one, let's hit the pub and leave the details to the law-talking guys.
posted by Abiezer at 10:18 AM on October 29

My prediction - Wittrig goes down in flames.
posted by caddis at 10:20 AM on October 29

What about designer knock-offs in department stores? Slippery-slope folks.

Pointing out the informal logic fallacy you using as rhetorical flourish is probably copyrightable because it isn't very utilitarian.
posted by srboisvert at 10:37 AM on October 29

Not especially genius perhaps (actually I quite like the last, simplest one), but obviously not generic if Ungar was indeed the first person to design and build them.
posted by Flashman at 10:45 AM on October 29

I'm going to sue them both for wasting my tax money on being unnecessarily litigious.
posted by Jon_Evil at 10:47 AM on October 29

Those are some really generic designs that I'd expect to see from a firepit sold at Home Depot or something.

"Expect" to see? Did you see them? Find me some that look like that. We are not talking about a design patent here. The level of uniqueness required for copyright protection is low. Of course if there are a lot of somewhat similar designs already then the range of difference which would still infringe will also be low. The argument that Ungar's designs are merely utilitarian is a laugher, not worthy of wasting good money on. If Wittrig wants to succeed he is going to have to show that there were lots of similar designs, that this is a crowded field, and thus even his small differences would take him out of the range of protection afforded Ungar. Ungar may also have a trade dress claim he could make.
posted by caddis at 10:54 AM on October 29

Wittrig sues Ungar to strip him of his copyrights because...

"Defendant's Fire Pits are functional, utilitarian and useful articles that are not subject to copyright protection."

This position seems correct. Designs are not copyrightable. He should have gotten a design patent which are patents establish specifically for this kind of thing.

Under federal law, you can protect an idea with one of:

Copyrights
Trademarks
Design Patents
Utility Patents
Trade Secrets

The problem is that they all blend into one another. The right one to use is not always obvious. In this case of firepit guy, he blew it. Copyright is probably not appropriate, he failed to file a design patent, so it's public domain.

Moral message: if you're going to go into business selling something you created, don't rely on wikipedia for legal protection of your business. Talk to a lawyer.
posted by Pastabagel at 11:01 AM on October 29

Pastabagel Sculpture is copyrightable. And it's pretty obvious in the immediate context that he originally created these fire pits and presented them at restaurants as part of the artistic atmosphere. I was emailed the information last night and read through the brief the plaintiff filed and it's pretty much a joke. On that basis alone the artist will probably win on at least the design the reproduces the sculpture and the name. If he doesn't win on the rest, well that's too bad. He should have taken the time to file the right paperwork and met with a lawyer. It's certainly not the "poor artist" case people are trying to make it out to be. Ornamental fire sculptures have existed for thousands off years and I bet most of them have cost less then 1,000 dollars.

Although pastabagel is right that he should filed a design patent. If people took the time to learn intellectual property law then we 'd all benefit from less boing-boing-esque posts that automatically defend the "little guy" and hate on the "evil corporate monster" without regard to anything more then their own self-righteousness.


God I hate Boing-Boing, why do I still go there?
posted by cyphill at 11:38 AM on October 29 [2 favorites has favorites]

Oof, Pastabagel. Ideas are not copyrightable, full stop. "Designs" are copyrightable - throw an original sculptural element on a spoon, and while the functional aspect of the spoon can't be protected, the sculptural element may be. In certain cases, "designs" can be protected as trade dress. A design patent would have been nice, but not having one doesn't spell doom for Ungar.

Frankly, I think the copyright counts are window dressing. Ungar's C&D claiming copyright infringement simply opened the door for Wittrig to bring his consumer protection and interference with business relations claims in the court of his choice.
posted by schoolgirl report at 12:15 PM on October 29 [1 favorite has favorites]

This is an interesting legal battle with potential far reaching side effects. As a landscape architect, I deal with procured works such as this, and custom works that I design personally. And when there's money involved, people get ugly.

The general feeling in various parts of the industry seems to be live-and-let-live, at least to an extent. Instead of lawsuits, most companies invest in better marketing and product improvement. One sales tactic is to simply point out the offender to the customer and inform them of his or her ethic. Would you buy product from this man?

However, this could set a precedent that goes either way; encouraging intellectual theft or stifling competitive products that are indeed better than the original (not that this is the case here). Designers of all stripes are notorious thieves. This could open the door to legal issues and costs that ultimately are borne by the consumer.

One more thing: though this seems trivial, and a single instance of this probably is - but landscape products are a huge, huge business.
posted by Xoebe at 12:34 PM on October 29

"Designs" are copyrightable

He should have gotten a design patent

These are three different things. Designs can be protected, expressions (among other things) can receive copyright protection and patents can be registered and so receive protection. Three different, separate copyrights. Trademarks have another, separate, protection scheme.
posted by litleozy at 12:43 PM on October 29

My feeling on the case is that a copyright protection is unlikely because the firepits are insufficiently original.

The real meat of this case if whether a passing off action is possible. A passing off action is essentially when a trader misrepresents his goods so as to deceive consumers into thinking his goods are those of another, generally to benefit from the 'business power' (known as goodwill) that business has built up. It's tricky here because Ungar isn't trying to pretend his goods come from Wittirg but he is benefiting from the reputation that Ungar has built up.

Basically if Wittrig can prove that he has built up 'goodwill', a reputation or a client list basically, that there is a deceptive misrepresentation by Ungar where people will confuse his firepots with Wittrig's then he can get an injunction against Ungar.

This course of actions avoids unwieldy intellectual property rights, copyright protection is a bridge too far, but prevents Ungar riding on the back of Wittrig's work.
posted by litleozy at 1:00 PM on October 29

To qualify for copyright protection, a work must be original to the author. See Harper & Row, supra, at 547-549. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B] (1990) (hereinafter Nimmer). To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be. Id., § 1.08[C][1].

(see para [10])
posted by caddis at 1:25 PM on October 29

This course of actions avoids unwieldy intellectual property rights, copyright protection is a bridge too far, but prevents Ungar riding on the back of Wittrig's work.

I think you may have reversed the names in that post. Ungar's work was the original, and prior, art - Wittrig copied Ungar's work. Ungar had been selling his original works a year or so before Wittrig started selling copies of Ungar's work.

The part of this that I find concerning is the idea that deep pockets and preemptive strikes can invalidate a copyright - if Ungar runs out of money defending his copyright against Wittrig's apparent violation and subsequent lawsuit, Ungar may actually lose the copyright to his own, original work. All Wittrig has to do is outspend Ungar. That's revolting.
posted by FormlessOne at 2:21 PM on October 29

Why not compete in the market?

I know, I know, crazy talk...
posted by ChurchHatesTucker at 6:04 PM on October 29

The specific shapes, or design, of these vary. Seems to me his best shot might have been just a regular utility patent. One type of utility patent is a parameter patent, like a teacup whose handle has an opening exactly 1.732 inches in width, or stainless steel with 2.9173 % chromium. Perhaps he could have patented a planter with the dimensions of common tanks.
posted by StickyCarpet at 6:43 PM on October 29

All Wittrig has to do is outspend Ungar.

Defending a patent at trial is generally understood to cost more than a million dollars.
posted by StickyCarpet at 6:46 PM on October 29

cyphill: God I hate Boing-Boing, why do I still go there?

Delete your bookmark. Until you mentioned BB, I'd forgotten I'd deleted mine weeks ago. Haven't missed them (and the new layout is awful).
posted by Decimask at 7:07 PM on October 29