Copycat Company Sues Original Artist To Void Copyright Claims

It’s a natural impulse to want to support the little guy, the David who faces down a powerful Goliath. That’s why it’s easy to get behind this guy’s claims that a copycat business is suing him to force him to abandon his own copyrights. Wtf!, you might say when you read something like that. Is that even possible? It is, and the story is more nuanced when you look at both sides, which makes it a good example of why it’s sometimes hard to be a “good consumer” when deciding where to spend your money.

John T. Unger is an artist who makes firepits, which are decorative metal bowls that you place on your deck or in your backyard and burn fires in. They’re pretty cool looking; I’d own one if I had a deck, or a backyard, or $800. Rick Wittrig, the owner of FirePitArt.com, also makes and sells firepits, and it seems quite possible he stole many of his earlier designs from Unger’s work—his bowls went up for sale approximately a year after Unger’s bowls, and in many instances they’re virtually identical. They’re also slightly cheaper.

Unger was understandably upset that someone had swooped in and usurped the market he’d been carving out for himself. Here are three examples of Unger’s original work and the copycat products Wittrig sells, along with estimated dates provided by Unger of when they were created. (Click the image to see it at full size.)

Unger contacted Wittrig:

Concerned about preserving my reputation and rapport with art buyers, I sent a Cease and Desist letter on April 30th, 2009 asking that Mr. Wittrig cease manufacturing the designs which were being confused as my own. A letter of flat refusal came back in response. In further correspondence, I explained my concerns over confusion of authorship, provided his attorney with copies of the copyright certificates as well as the original photos used to apply for copyright. I stated clearly that I have no objection to him creating original works that could share the marketplace in their own niche. Several times in the course of correspondence, I asked Wittrig to provide any evidence that his designs were original works. Given the opportunity to deny copying my designs, Wittrig did not- he only asserted that he was within his rights to continue making them on a large scale. Then he filed suit to have my copyrights removed, as well as for damages and legal fees.

I asked Rick Wittrig if Unger’s claims were true, but he didn’t respond. Well, actually he did, but only to say,

John has indeed written a carefully crafted emotional story omitting a lot and embellishing even more. I suspect your email is one sided in nature and you are not truly interested in the truth. The facts are all public knowledge and if you [are] an “editor” you will check them.

Oooookay. Well, fine! I edited my way over to the Tennessee Middle District Court’s Eelectronic Court Filings (ECF) System, and edited a look at the actual lawsuit.

In it, Wittrig doesn’t deny that Unger’s designs came first. He simply claims that Unger has no right to copyright his fire pit designs, as they are utilitarian objects and not decorative works. Here’s some of the relevant language from the lawsuit (emphasis mine):

9. Over the course of the subsequent months and extensive communications between legal counsel for the parties, Defendant [Unger] has continued to assert his allegations of copyright infringement, further basing them on the registrations of copyright claims made by Defendant, and issued by the U.S. Copyright Office under numbers VA 1-667-92, VA 1-667-096 and VA 1-667-181, all for a number of articles that are in fact outdoor fire pits, but were registered by the Copyright Office as “Sculpture/3-D Design,” on the basis of Defendant’s claims and representations.

[…]

16. An actual case or controversy exists within the meaning of 28 U.S.C. § 2201 as to whether Plaintiff’s manufacturing, marketing and selling of Plaintiff’s Fire Pits infringes on any copyrights of Defendant.

[…]

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

Utilitarian objects can’t be copyrighted, but decorative elements on them sometimes can. The U.S. Copyright Office say this on the matter of utilitarian objects (emphasis mine):

“Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

I spoke with a lawyer familiar with copyright law and showed him the pictures of Unger’s and Wittrig’s bowls. He too pointed out that decorative elements can be granted copyright protection so long as they’re not required for the device or tool to function. He also pointed out, however, that the design has to be original enough to warrant copyright; if, for example, your design elements were pulled from Mayan iconography, then even if someone steals your idea of putting those icons on a utilitarian object it would be hard for you to press a copyright claim.

That doesn’t prove Unger or Wittrig is right in this case. All it does is show that there may be some real questions for the judge to resolve, possibly on a case-by-case basis for each design. It may turn out that Unger and Wittrig both come out winners and losers in the battle.

That copyright stuff is fascinating, but what does it mean ultimately for a consumer looking to buy a firepit? Do you purchase from the artist who had the idea first, or do you buy a nearly identical version for slightly less money from the copycat? Maybe Wittrig was a jerk for suing the artist to get rid of his copyright claims, but then again maybe he really doesn’t think they should be protected designs.

From a consumer perspective, Wittrig’s bowls are slightly cheaper, but Unger has the market cornered on old fashioned concepts like convenience and creating an emotional experience. Unger’s website is easy to navigate, and there’s a narrative around his bowls—you see his role as an artist in creating them, you learn what each design means to him, and so on. By contrast, it’s obvious Wittrig (or at least his web developer) should be put in Flash Prison for the FirePitArt.com website, which opens a new full-screen window and auto-plays music like some horrible MySpace parody.

My gut instinct is always to buy cheaper, unless by doing so I’m causing enough harm that it exceeds my “I must pretend it isn’t there in order to live in this world” threshhold. And obviously, Consumerist is all about making the best choice as a consumer, not as a “friend of the artist” or “outraged netizen.” In the end, all copyright battles aside, you have to decide how much loyalty you feel to the original producer of a good when there’s a cheaper knockoff version available.

“Imitator Sues Me to Overturn Copyrights: Please Help Defend My Art” [johntunger.com] (Thanks to Shannon and Yamen!)
Firepitart.com LLC v. Unger
“Hot-rod style fire pit” [Boing Boing]

RELATED
youthoughtwewouldntnotice (Thanks to catastrophegirl!)

Comments

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  1. darkrose says:

    I really don’t have much to offer as I think the lawyer Chris talked to pretty much summed it up, but I wanted to say this is all very fascinating stuff to me and part of the reason I’m making a mid-life career change to be an IP lawyer.

    • the Persistent Sound of Sensationalism says:

      @darkrose: Interesting indeed. I’m currently researching for a paper on the “assumed” responsibilities of ISPs regarding end user copyright violations according to the entertainment industry and what a precedent holding them responsible for their customers violations might mean.

      • alexa says:

        @Persistence: It is fascinating. What makes me laugh though is the assertion that this isn’t art, and can’t be copyrighted, and yet the url on Wittrig’s site is called “firepit art.” I so hope someone points that out in court.

    • ktetch says:

      @darkrose: There is NO SUCH THING as ‘IP’. There is Copyright, trademark, and patent law, but there is no such thing as ‘IP law’.

      @Persistence:Enjoy your paper. I’ve been working on the topic for 8-9 years now, and I’m still floored by some of the claims (I’m even writing a book on it, detailing some of the more ludicrous claims made over the last 10 years, including some cases I’ve been part of – if you want any help, drop me an email)

  2. Spellchk says:

    My heart says buy from the artist. My gut say buy from the copycat. My brain however tells me I can just make one of these myself.

    • The Porkchop Express says:

      @Spellchk: or you could just dig a hole and put rocks around it.

    • WraithSama says:

      @Spellchk:
      My heart says buy from the artist. My brain says buy from the artist. My gut says to eat a sandwich.

      This kind of copycat behavior is becoming increasingly prevalent. It’s kind of sad, really. Reminds me of the episode of the Simpsons where the owner of Itchy & Scratchy tries to defend against the infringement case against him by saying, “If you take away people’s ability to steal ideas, where are they going to come from?”

    • Radi0logy says:

      @Spellchk: But what I REALLY want to know is what your duodenum thinks

    • econobiker says:

      @Spellchk: Get ya to your local scrap metal yard and find some pressure vessels then add an Oxy-acetylene cutting setup and away you go. But don’t rip off Unger…

    • eightfifteen says:

      @Spellchk: Remember what Stephen Colbert says: Do you know you have more nerve endings in your gut than you have in your head? You can look it up. Now, I know some of you are going to say, “I did look it up, and that’s not true.” That’s ’cause you looked it up in a book. Next time, look it up in your gut. I did. My gut tells me that’s how our nervous system works.

      So I guess you should buy from the copycat.

    • dorianh49 says:

      @Spellchk: I was wondering how far down the comments I’d have to scroll to see, ‘I build my own firepits at HOME’

    • kaceetheconsumer says:

      @Spellchk: Yup, that sums me up perfectly. I’d rather make than buy, and I’m highly frugal, but if I was going to buy something artistic and I knew that one guy had ripped off another, I wouldn’t buy from the guy who did the ripping regardless of price.

      This also sums up why I do not sell any of my crafts.

      • Radi0logy says:

        @kaceetheconsumer: “This also sums up why I do not sell any of my crafts.”

        Yeah. THAT’S why.

        • kaceetheconsumer says:

          @Radi0logy: Um…yeah it is? Not sure why I’m getting the snark on that…

          I get offers all the time from people who expect Walmart prices at slave labour wages.

          • The Porkchop Express says:

            @kaceetheconsumer: Nobody else to pick on I guess.

          • ReaveT says:

            @kaceetheconsumer: I make and sometimes sell pens. It’s hard to convince someone that something I made is worth $50 because of the costs involved, especially when they can go almost anywhere and get a similar object for a cheap price. Or free if you’re willing to sign up for a new credit card.

          • korybing says:

            @kaceetheconsumer: That’s the reason a lot of artists are struggling hard. People go to art fairs or galleries and expect to buy art at cheap Walmart prices and claim that the greedy artists are selling their work for WAY too much, when often the prices are as low as the artists can go and still be able to make a living. Every art field suffers from this, sadly.

    • lmarconi says:

      @Spellchk: My uncle is a handmade furniture maker – knowing the time, care and artistry he takes with his products (even if they are pricey) I would have to side with the artist on this one. Even if there’s a difference in price, he’s clearly taken care on his website to show that there is quality and craftsmanship behind his pieces. It’s a bit of a dying art really, and it’s nice to see.

    • LostAtoll says:

      @Spellchk: the argument obviously isn’t about whether anyone can make one or not and this kind of off topic crap is what blogs don’t want. They do want your educated position on the topic, not your “i could make one of these” useless comments.

      • LadySiren is murdering her kids with HFCS and processed cheese says:

        @LostAtoll: Rather than assuming that Ben, Chris, and crew don’t want to engender engaging discussions, why don’t you pose the question to them? Might be better than tsking your tongue at everyone here, no?

        • LostAtoll says:

          @LadySiren: what? I was assuming chris and ben were looking to “engender” engaging discussions, which is why I suggested we keep our conversation on topic, instead of pointless opinions on their solution to fire needs. TSK.

    • bwcbwc says:

      @Spellchk: Seems like Unger should have gone for a design patent. Something that fills the void between trademark and copyright for objects.

  3. UrIt says:

    I like Unger’s work better, it has more a unique feel and less of a mass produced cookie cut-out, especially the first one. i’d drop $800 on that if i also had the house/deck appropriate

    • Telekinesis123 says:

      @UrIt: Well said, and that’s what I thought as well, not to mention the revulsion of buying from a cowardly lowlife who makes a living like a parasite off of other peoples talent.

    • SaraFimm says:

      @UrIt: I second that.

    • Trai_Dep says:

      @UrIt: Yeah, Unger’s work is swoopier, more emotional, more refined. It has more personality.
      (and I judged which one before I matched the names with who was who in the argument)

      …Guess that settles the “buy the original” or “buy the knockoff” in my mind.

      To say nothing of rewarding originality over theft.

    • goodfellow_puck says:

      @UrIt: Agreed. The copycat’s work is stiff and boring. He didn’t even copy well.

  4. The Porkchop Express says:

    To be honest, none of them look “original” they look like what I would assume a decorative fire pit to look like. I mean the one with the flame design….of course the fire pit would have a flame design.

    Of course that doesn’t mean that they aren’t copying him.

    They also look like something out of Samuari Jack.

  5. Shoemaster says:

    Yeah, looking at the designs I immediately wondered, “you can copyright something as simple as that?” I mean, you can’t exactly copyright the form of a wave or a flame. They’re natural occurrences.

    I gotta say I’m rooting for the company a bit, even though they were dicks to the blog.

    • The Porkchop Express says:

      @Shoemaster: And as I said above, the flame is an obvious design for this type of thing at that.

      • cabjf says:

        @The Porkchop Express: Someone at the copyright office thought the artistic embellishment was original enough for a copyright. It is certainly reasonable for the artist to be upset that there is someone else out there ignoring his copyright on the designs. He even went about it nicely though and asked the copycat to produce his own designs. It was the copycat that got the lawyers involved. I would bet that the copycat had no idea about the copyrights and only his lawyer came up with the idea of arguing against them based on utilitarian objects. Sadly this is going to wind up a very subjective case with the results depending more on the lawyers involved, the judge involved, the phase of the moon, the alignment of planets, etc than any actual laws.

        • The Porkchop Express says:

          @cabjf: I’m not saying he can’t be upset, just that the flame idea itself seems to obvious for this application.

          I know the flames can all be different, but how different do they have to be before there is no “ripping off”. I don’t work with metal or anything like it, but I would imagine that there is a limit to the shapes you could make (at least make well).

        • newfenoix says:

          @cabjf:
          That is the problem. Some knuckle head has been talked into filing a law suit that I believe will backfire majorly. This calls into question the entire copyright process.

      • madog says:

        @The Porkchop Express: Obvious to some? Yes. Common on fire pits? I wouldn’t imagine so. Otherwise there would be more fireplaces and BBQs with flame designs on them, but for most [read: people who don’t watch NASCAR or think explosions are the most awesomest thing ever], it wouldn’t be a great selling point.

        There are several patented items that in hindsight seem obvious to many, but (at least at the time) that didn’t lessen the validity of said object.

        I’m just sayin’.

        • madog says:

          @madog: “Copyright”, and not “patent”, of course.

          A copyright covers “works of authorship,” which essentially means literary, dramatic, and musical works, pictorial, graphic, and sculptural works, audio-visual works, sound recordings, pantomimes and choreography. A patent covers an invention, which essentially means a new and non-obvious useful and functional feature of a product or process.

    • doctor_cos wants you to remain calm says:

      @Shoemaster: Actually, you can copyright a ‘swoosh’ and a wave (think Coca-Cola).

      You can copyright a soda bottle (again, think Coca-Cola), why not a firepit?

    • billy says:

      @Shoemaster: Copyright registration doesn’t really enhance the validity of a copyright. It only (or mostly) serves as evidence that the work was made.

      In other words, if Wittrig is right and the fire pits can’t be copyrighted because they are “useful objects,” then the registration isn’t worth anything because the objects aren’t really copyrightable subject matter in the first place.

      By the same token (and I think this is what you are getting at) if it’s not considered an “original” work by a court, Wittrig can copy all he wants (assuming there is no other copyright holder for that art).

      But if Unger is right and the fire pits rise to the level of “original works of authorship fixed in a tangible medium of expression” then the registration demonstrates when the object was created and allows for enhanced statutory damages.

    • PTB315 says:

      @Shoemaster: I don’t think he was a dick; he’s not wrong for thinking a blog would frame a story before getting all the facts. That’s why this is a blog and not an actual news organization (Not that news orgs don’t do this, they’re expected not to though.) And in actuality, that’s kinda what Consumerist does a lot when they don’t get an answer, they just run one side of a story.

      I’m not criticizing this blog for doing so, but if Consumerist came to me asking questions about something that was an entangled and emotional subject, I’d probably be a bit weary. The Consumerist is a blog that often assigns blame to businesses for failing consumers, or at least calls them out for not meeting peoples expectations of what a business should do for a customer.

      Look at the Chris Farley/Direct TV ad post. That wasn’t simple statement of fact, the author straight up said Farley’s family was making a cash grab instead of honoring him. It’s not a factual, verifiable statement either way, its opinion on taste.

      • secret_curse says:

        @PTB315: And it’s very possible the company’s lawyer specifically told Wittrig not to comment to anyone about the case, hence his “the info is out there, find it yourself” attitude. Kudos to Chris for actually looking up the relevant information and presenting both sides of the issue.

        • wrjohnston91283 says:

          @secret_curse:

          This is what a consumerist article should be. You get a story, you reach out to the other side, and do some background work. you don’t just copy and paste someone’s email about how they’re being screwed over. Good job Chris – let’s see some more of these.

    • LostAtoll says:

      @Shoemaster: Really? you’d go for the company even though he’d already been given a copyright. Based on what, because you don’t think it’s creative enough. Doubt it.

  6. Marcie Vargas says:

    I’m John’s girlfriend, and I’m helping him out with this. Thank you for the well-researched article that explains both sides. We’ve been so impressed by the support of the online community and would like to encourage them to help us spread this story. We want people to be ethical and truthful and not to use derogatory language, please see our update for ways you can help. [www.johntunger.com]
    Thanks!

  7. cranke says:

    Wittrig is a hack. Can’t resist copying another artist for his own profit. what a dick. I would feel like a dick if I bought Wittrig’s knock off and had to look at it every day.

    Seriously, how hard would it be to come up with your own design?

    • Ubik2501 says:

      @cranke: Not to mention that when asked about it, Wittrig basically made nothing but personal attacks on Unger and Consumerist. At the very least, that’s unprofessional and uncalled for. It’s also a big fat warning sign that, if you have problems with their product after purchasing it, the company will probably treat you about as well as they treat the guy they’re ripping off. It’s a big signifier of their business ethics, and those ethics apply to the consumer as much as anybody else the business deals with.

      • ohenry says:

        @Ubik2501: That’s what (perhaps, sadly) popped into my mind after I was done with reading this article. Wittrig is a dick.

        Although, it did leave room for some funny moments. I lol’ed as Chris “edited” his way over to the website and such.

  8. johnfrombrooklyn says:

    Let’s be honest. You base your entire business off ripping off someone else’s ideas means that you’re a loser. End of story.

    • doctor_cos wants you to remain calm says:

      @johnfrombrooklyn: Isn’t that what Hot Topic does?

      Or Microsoft, if they can’t buy your work outright.

      • madog says:

        @doctor_cos: I would say Microsoft more so (since “they started it”), but Apple in many things as well. I consider myself an Apple fan (no, not “fanboy” or the I-love-Avril-Lavine “fanboi”, that makes one instantly sound biased and immature), but honestly if neither of them did that they wouldn’t be where they are today and wouldn’t have some of the nice features they both have.

        At the very least it’s better when they purchase someone elses idea and recognize the creator instead of stealing it outright, but I digress.

      • 2 replies says:

        @doctor_cos: “Or Microsoft, if they can’t buy your work outright.”

        You don’t follow Microsoft Research much, do you?

    • Radi0logy says:

      @johnfrombrooklyn: Or Bill Gates

    • Tsubasa says:

      @johnfrombrooklyn: Yeah, maybe you can’t copyright Mayan iconography or the shape of a flame, but there’s something deeply wrong about taking someone’s whole original concept for a business and just flat-out copying it. If it was just a lemonade stand that would be one thing, but this is art.

    • LostAtoll says:

      @johnfrombrooklyn: This is very true, and I definitely make it a personal rule never to buy from these kind of companies. There are tons of them.

  9. Eyebrows McGee (now with double the baby!) says:

    Weirdly, I recall seeing Unger’s work in a catalog of hand-crafty things and thinking, “Wow, those are cool, but really expensive!”, and then seeing Wittrig’s later on in a mass-produced garden catalog and thinking, “Didn’t I see these a while ago? Why aren’t they as cool as I remember?” I figured out they were mass-produced instead of handmade, and hadn’t really thought of it since, but it’s interesting to see them side by side … it was the top design I was interested in for my patio, and I think there’s a huge difference in the two designs. #2, as well, Unger’s has a nicer “line” and isn’t as clunky.

    Weird to see the whole thing pop up on Consumerist.

  10. BL Ochman says:

    What I wonder about Mr Wittrig is why, given the millions of possible firebowl designs he could create, he felt the need to copy John T Unger’s firebowls.

    As John has noted, if Wittrig spent the same amount of time, energy and money creating original designs, there’d be plenty of room in the universe for both of them to be successful.

    • Luckwouldhaveit says:

      @BL Ochman: The fact that he copied Unger’s firebowls, out of all the firebowls out there, shows that Unger’s work has that element of creativity – the creative spark – that copyright law is here to protect.

      • cash_da_pibble says:

        @Luckwouldhaveit:
        damn straight, pal.

      • Fist-o™ says:

        @Luckwouldhaveit: That is a very good point. Why steal -those- designs?

        • madog says:

          @Fist-oâ„¢: Cause there is only one type of flame and it’s super-hard to draw.………… (I’m on the artists side and being sarcastic about how ridiculous that Wittless guy is being).

          • 716 says:

            @madog: That’s actually why I think the original artist is overstepping his copyright here. There are millions of unique ways to render flame shapes, and here we see two totally different ways. (For what it’s worth, I prefer the original artist’s style.) It’s just my one opinion, but I don’t find the two similar enough to consider the second to be a copy of the first.

            As for the second pair of images, can you really copyright a common geometric shape such as a spiral? If so, I call dibs on rectangles.

            The third set is just a triangle shape… however, you could convince me that curving the triangle upward into that particular bowl form is a unique copyright-able concept.

      • LostAtoll says:

        @Luckwouldhaveit: exactly!

      • katstermonster says:

        @Luckwouldhaveit: What a great way to put it. :) On the bright side of this story, imitation is the sincerest form of flattery!

    • kaceetheconsumer says:

      @BL Ochman: Because that’s what uncreative jerks do.

      There are a million ways one could knit a caterpillar, so why did a major yarn brand put up a pattern that almost stitch-for-stitch duplicates my popular and free caterpillar pattern? They employ “designers”, so why not design their own? Because, as I’ve had other real designers tell me, it’s cheaper for them to pay a hack who will rip off someone else than to pay someone who has an actual reputation for originality.

      And the public doesn’t care because most won’t know about the rip-off and will buy the cheaper version. In my case both patterns are free, but the yarn company is using it to sell yarn.

  11. CrowMignon says:

    Wittrig’s defense is that these are utilitarian objects, but he himself is selling them as art (FirePitArt.com – Functional Steel Sculpture.) Sounds like a real sleazeball.

  12. pecan 3.14159265 says:

    The first fire pit, I could believe wasn’t exactly a direct ripoff – more like the slightly different off brand. But the next two are pretty dead even, so it makes me wonder.

  13. h3llc4t, breaker of office dress codes says:

    I have several friends who are artists, and I see how difficult it is for them to make a living sometimes. I also see how much it really does hurt to have someone steal your artwork, especially if you’re relying on that income to pay your electric bill, not put marble flooring into your summer home. Stealing art sucks.

    Even if Wittrig hasn’t infringed on copyrights, I wouldn’t buy from him after seeing his snarky response. I’d either save up for the nice one from Unger or not buy one.

    • subtlefrog says:

      @h3llc4t has a slow work day: That was my thought exactly. Instead of being a dick about Chris’ inquiry about the whole story, why not just give his side. But he’d rather assume it will be one-sided. Maybe he’s had problems in the past – but if you really think you’ve done nothing wrong, then put your side out there.

      Not that I’m buying a fire-ring-thing anytime soon.

    • veg-o-matic says:

      @h3llc4t has a slow work day: @subtlefrog: Exactly.
      My money is good money, not dickmoney.

      Though I did appreciate that it gave Chris a chance to say “edited my way over.. and edited a look.”

      The little things. They entertain me.

      • katstermonster says:

        @veg-o-matic: The writers are prone to sarcasm and snark (not that I’m complaining, read a few of MY comments, hah), but I really love articles like this that sneak it in among some truly solid reporting. Chris deserves a pat on the back for this.

      • h3llc4t, breaker of office dress codes says:

        @veg-o-matic: Heh, I appreciated the “editing” too.
        My big thing is that you ultimately vote with your wallet. In our consumer-driven society, it’s hard for people to walk away from buying an item even if they don’t agree with the business practices of the manufacturer. There are a lot of companies that I won’t buy from because I can’t get behind some of the things they do. Sometimes that means not buying the super-comfortable shirt or the really pretty eyeshadow or the cheaper fire pit. I’d rather live without something than give financial support to assholes.

    • korybing says:

      @h3llc4t has a slow work day: Same here. I’m probably really biased because I am a struggling artist and many of my friends are struggling artists and we barely make enough money as it is, so the thought of someone biting your profits (profits that mostly go to just being able to live for the next month) is terrifying. It’s very rare for even the best artists to make it to the upper tax brackets, so of course they’re going to try to be as protective of their artwork as possible. I hope this guy wins his case, the court costs alone is probably hurting him pretty badly.

  14. econobiker says:

    I saw the website of Unger a short while ago and while these are cool, the second thing that thing which crossed my mind:

    “How soon until Walmart has a Chinese factory knocking these out copyright or artist be damned?”

    (The first thing to cross my mind: was that he is getting $129 for a scrap propane tank bottom. Good for him- wish I had thought of it first.”

    • Kogenta says:

      @econobiker: Yeah wouldn’t that be interesting, they win their little battle and are allowed to copy whatever they want, and some new chinese factory suddenly pops up and does the same for a fraction of the cost. Can’t sue them, there’d be precedent then.

    • ChunkyBarf says:

      @econobiker: Interesting you mention this. I knew a guy who was a ‘classically trained artist/painter’ that was hired by a firm (and paid well) to make designs for big fancy wrought-iron sculptures and big stone fountains. So, basically, he would design some medieval looking fountain and sculptures and then they hired a team in Mexico to mine the stones, carve them, build the fountain, tear it down and number the pieces as they did it. So, in essence, they outsourced ‘high quality’ art. He said that his boss told him it had to be a minimum of 10% different than anything else in order to be ‘copyright-legit’. I was floored, I had no idea there was money to be made that sort of way. He was saying that as long as you change something you see at, say Pier1, by at least 10%, you can sell it at the soulless corporate market of your choice at rock-bottom prices.

      • catastrophegirl chooses not to fly says:

        @ChunkyBarf: i’ve had a lawyer tell me that too. i can make my art by modifying existing pieces and then sell it as long as i don’t call it by the name of the original object that i use as the starting point for the piece [i modify toys]

  15. MinorAnnoyance says:

    Wittrig is the Cash4Gold guy of the decorative firepit industry.

  16. fjordtjie says:

    does anyone else see the irony in the copy-cat company saying it’s a utilitarian object and not a work of art, but their website is firepitART.com? anyway, who said art couldn’t also serve function? yeesh.

  17. parad0x360 says:

    The original and more expensive ones are more attractive to the eye. They look like far more attention is paid to them and since they arent mass produced that makes perfect sense.

    However the other guy is within his right to copy them. If a customer is after quality and visually pleasing designs then they will obviously go with the originals, if they just want to save money and have a somewhat decent looking design they will go cheap.

    Either way Id never buy one, if I want a fire pit ill make one the old fashion way =)

    • SacraBos says:

      @parad0x360: What, with a rusty Weber grill sitting on the ground?

    • katstermonster says:

      @parad0x360: What, exactly, are your credentials for asserting that “the other guy is within his right to copy them?” If the copyright is legitimate, and I’d love to know why you think it isn’t, then he is absolutely NOT allowed to copy them.

  18. Philippe23 says:

    Buy from the cheaper, send a copy of the receipt to the original.

    That way, if the courts decide that the original artist has a valid claim, he has proof to base his claim for damages on. If the original artist loses, he knows he needs to lower his prices.

    The copy-cat artist has a right to counter-sue so that he can get this issue behind him and (assuming he is right/wins the suit) get the original artist to stop harassing/bad-mouthing him.

    • LostAtoll says:

      @Philippe23: Or just be a good person, and not a lawyer, and buy from the original true artist that is making a better product.

      • AI says:

        @LostAtoll: How do you know it’s a better product? They are both just hunks of metal. The designs are completely meaningless to the function.

        • LostAtoll says:

          @AirIntake: some would argue that the designs are much more important than the function. Hence being an artist or not. If you see them as just hunks of metal then you’re missing the point of the art. It’s expression. Can you not just look at them and notice the appeal? Can you not see how chea the others look next to the originals?

          It’s a better product because art went into it and not just production for profit.

    • Tim says:

      @Philippe23: “The copy-cat” what? Oh right, “artist.”

    • PillowTalk says:

      @Philippe23:

      What? “He knows he needs to lower his prices”?

      Look, something a lot of people don’t understand about hand-made art is that it costs what it does because the artist needs to make some sort of return on the amount of time and energy spent (as well as cost of materials – I imagine maintaining welding and metal-working tools and a workshop space is not cheap). A lot of times artists are just barely squeaking by, pricing their products so that they make $8-10 an hour from the time they spent on it.

      Things like this are time consuming, that’s why they cost so much. Copycats who can mass produce this sort of thing force artists to price their art lower so that they make below minimum wage on the time invested, which eventually forces them to stop and to have to find some other job or way to supplement their income. That’s why he’s trying to protect his designs – he doesn’t mind having a competitor in the same market, but having someone making the exact same designs effectively robs him of his income.

      I mean seriously people, these things aren’t expensive because of vanity. It really burns my ass when people don’t understand this and think artists are just trying to rip them off, or that artists make tons of money on this stuff – that’s not true at all.

      • Marcie Vargas says:

        @PillowTalk:

        Thanks Pillow Talk, you are so right!

        You would not believe what it costs for John to run his business (I’m his girlfriend, btw.) What money he gets to keep as profit is very, very small compared to what comes in. Employees, supplies (not just the propane tanks, but all the various stuff for the plasma cutter, etc), shipping, and ten million other little things that you would never consider.

        We live very modestly in what basically amounts to a shack in a rural area of Northern Michigan-one of the most economically depressed states in the nation. Several people depend on John for part or all of their income in an area where there just aren’t jobs to be had.

        He rarely takes a day off, ever. I get him to take HALF a day off every few weeks. His business is a 24/7 operation, but he loves every minute of it. He does this for his love of art, not money, but we have to eat too.

  19. MostlyHarmless says:

    People still have houses?

    On a more serious note, (though not by much), you should totally check out yesterday’s daily show segment on “voting with your wallet”. It nicely rips into liberals who boycotted WholeFoods and the conservatives who rushed to it.

    Gist of it all: Everyone is a hypocrite. Just that most people try to keep it to a level they are comfortable with.

  20. jmhart says:

    The prices aren’t really that different, especially for the noticeable difference in quality.

    However, it’s a tough topic. The price tags of both suggest a certain amount of artistic flair/creativity is required to create them, therefore the argument that they are utilitarian seems to be off the mark.

    I think Wittrig would have a more compelling argument if his prices were like $180.

  21. H3ion says:

    Unger is the Rolex watch. Wittig is the $25 knockoff you buy from the guy with the table on 7th Avenue.

    If Wittig is right, then the knockoffs of Louis Vuitton, Gucci, and even the pirate copies of Microsoft Windows 7 should be completely legitimate. Sorry, but I think he’s a snake and I wouldn’t buy from him.

    • billy says:

      @H3ion: Louis Vuitton, Gucci, etc normally sue on Trademark infringement, not copyright. In addition, as mentioned before, there may be some rights given to the artistic part of a utilitarian work. It’s an abstract concept, but not a well-established one.

  22. AllanG54 says:

    This is no different than when someone buys that $25.00 Rolex in Times Square. Or CZ as opposed to diamonds. You know you bought imitation but you want others to think it’s the real thing.

  23. Skeptic says:

    What a great rundown of a complicated topic. Kudos to Chris Walters for actually checking the court files and running the issue by an attorney for feed back rather than posting a quick “He’s ripping off my copyright” article :) Nice work.

  24. vastrightwing says:

    John, just be glad you decided against calling any of your designs “monster”

  25. DrMorison says:

    This is really quite simple. Wittrig is a doosh. (sic)
    And as a decent person, I would try really hard to try and avoid buying a product or service from someone like him.
    Not to mention that the local Benny’s has fire-pits for less than fifty bucks.

  26. feistydonut says:

    There’s a difference in quality between hand crafted and mass produced. You typically pay more for the artist to do the work but it’s usually worth it. Gook luck John!

  27. aka_mich says:

    How can Wittrig argue in court that these are utilitarian objects not subject to copyright in court yet turn around and charge a premium cost for these. Doesn’t he get that the decorative elements that he is arguing against is what differentiates these between something you can go pick up at Home Depot for $200.

    If I had the money I would definitely buy from John, looking through both sites it just seems like he actually loves what he does and isn’t in it just for the money. Not too mention, his just look better. I don’t know what it is, maybe better craftsmanship, better materials, methods, or whatever they just look better. The lines on the “Wave” pit towards the front of the picture on the home page look jagged and not very smooth at all.

    Sorry Rick, I know you’re just trying to earn a living just like John is but karma has to stand for something right?

  28. pop top says:

    @Spellchk: “I listen to my gut and my gut tells me that this ain’t a fit, but my heart says this could work and gut’s a damn moron, so they get to carryin’ on and then my brain chimes in and saying I got to try my hand at the fast second pace world of adult literture.”

    • Barbobaggins says:

      @squinko: A tentacle themed firepit would be hot and look great with my Big Gulp, but if I leave to get one I’ll lose my squatters rights.

  29. PLATTWORX says:

    While I think it takes “big ones” to sue someone you copied from to release their copyrights, I can almost see the legal angle here for both sides.

    Personally, one would think there are enough ways to design a fire pit so you would not need to copy someone else’s work. However, a consumer who doesn’t know this story will probably buy the copy/cheaper item.

  30. LIJ says:

    I ran into a similar situation this year — after diligently searching the web to make sure i was not violating any existing item, I began selling a wrist wallet based on an original, kind of convoluted pattern. It sold well in my etsy shop, and i naively did not give it much thought until a friend mentioned she saw my design in skymall catalog on a flight. sure enough, a company had been pimping my design everywhere for a while, and because it was a “functional item” it fell under patent law rather than copyright.

    Therefore I was legally screwed, as the 12 month window to dispute was closed.
    I did notice that the company had a patent application for my design on file, so the only thing I could do was send evidence of “prior art” to that company and the us patent office, effectively shutting down any patent.

    Because I did not file provisional patent and exert the needed diligence to protect it, they won. They probably could care less about the actual patent as they got their stuff mass marketed and sold quickly enough to make big money without it.

    Lesson learned on my part. My personal revenge is that because my design is now unprotected and “public domain”, I make a point of posting the pattern for free to any diy site I can find, in hopes that a few ” little guys” can cut into their business.

    • catastrophegirl chooses not to fly says:

      @LIJ: yeah, i have a device i made for dealing with my insulin pump tubing. since i can’t afford to patent it, let alone deal with the research to get it approved by the FDA [since it works with a medical device] i threw it into the public domain on purpose, published it on a major diabetes website and posted it in my flickr stream.
      if someone wants to improve it and make a design patent for the improvement part, cool.
      i’ll just keep teaching people to make their own at home

  31. rellog321 says:

    As a judge, I wouldn’t see any other way than to rule for the original artist. Without a doubt, Wittrig saw a easy opportunity to profit from someone else’s hard work. I have no sympathy for that, nor do I have any respect for theives.
    I am fairly certain that if this were a large corporate mass produced product, Wittrig would never DREAM of trying this, but he figures he has nothing to lose with a small business owner like Unger.

    Hands down, ever with a fairly substancial price difference I wouldn’t buy from Wittrig. Besides, if he’s willing to steal designs, what makes anyone think he wouldn’t skimp on material qualities and sell cheap junk?

  32. Chinchillazilla says:

    Just from a purely visual standpoint, I would go with Unger hands-down. They look much nicer.

    And from a non-douchey standpoint, I imagine he’s superior as well. If that’s how Wittrig responds when invited to tell his side of the story, imagine having to deal with him if you got a busted fire pit or something from him.

  33. sybann says:

    Wittrig is a thieving douchebag. I am famously frugal and I’d buy from the originator – IF I had that kind of money to BURN.

  34. Ms. Pants says:

    The thing that seriously bothers me most is that a fan of Unger’s work encountered Wittrig, and thinking he was Unger as the work is so similar, engaged in conversation with Wittrig. She then sent an email to Unger after she realised what had happened.

    I met this guy at a local festival this weekend and his work was so similar to yours I went over and introduced myself. Something was not right, but I was not sure that it was not you until I came back and checked your site… I was excited to meet (you) in person and he was aloof…? I am aggravated now knowing that he allowed me to go on and never said that I must be mistaking him for someone else.

    I think Wittrig knew exactly what was going on and didn’t clue the gal in because he knew he was ripping Unger off. I personally hope Wittrig loses the suit and has to pay exorbitant damages to Unger as a result. Oh, and that he also get chronic, incurable jock itch.

  35. aka_mich says:

    Just thought of something else, but being the copyright issue is still unresolved in the courts isn’t FirePitArts presently violating the copyright by still selling them even though obviously know there are copyrights in place for what they are selling? I guess I don’t understand copyright law but being the court is still deciding if the copyright is valid or not isn’t it still valid until a decision has been made either way? Maybe I’m just wrong in thinking that until it is finally resolved in court FirePitArts should be barred from selling them on their website. Anyone with a better understanding of copyright law care to enlighten me?

    • floraposte says:

      @aka_mich: Other way around, I think–until it’s established that the disputed copyright exists, there’s nothing to stop Wittrig.

      • aka_mich says:

        @floraposte: Maybe I read the article wrong then because isn’t he arguing that the copyrights do exist and shouldn’t?

        • floraposte says:

          @aka_mich: No, he’s arguing that there is no copyright. Unger’s arguing that there is. Either way, there’s nothing to stop him until the court says that there is a copyright and he’s infringing.

    • billy says:

      @aka_mich: He could try an injunction, but until the court tells him that he can’t make the “copies” he’s welcome to do what he wants.

  36. Marcie Vargas says:

    Hi again,
    We continue to be happily overwhelmed with support from the online community.

    John and I would ask again that people be ethical and truthful and not to use derogatory language, please see our update for ways you can help. [www.johntunger.com]

  37. LostAtoll says:

    First, it is blatantly obvious Mr. Unger’s designs are better, more thought out, and seem to be higher quality. Second, it amazes me that people can lie to themselves enough to warrant their actions. I’m sure it’s just for the money, but that doesn’t make it any better.

    Mr. Wittrig you are a disgrace, not only because you copied someone else’s idea, but now you’re fighting to prove that his obviously creative product shouldn’t be allowed copyright protection. Are you serious? Take a look in the mirror sometime, and ask yourself if this is who you want to be. Because the internet is now looking, and what they see is ugly.

  38. junip says:

    Unger’s are cooler. They have more motion in them, more definition. Wittrig’s look clunky and clumsy. Guy sounds like a real jerk too from his email. I’d totally spring for Unger’s work if I needed a fire pit and had the choice between the two. I hope Wittrig loses.

  39. fusilier says:

    In the comparison pictures, Wittrig’s have a very lazy feel to their designs while Unger’s are much more intricate. Even the swirly one–Unger’s swirls more. They’re a lot nicer. I’d be happy to pay more for Unger’s.

  40. morganlh85 says:

    If it were truly utilitarian, why would there be different designs available? If you can pick your favorite, that means there is much more to it – i.e. DESIGN.

  41. floraposte says:

    I think we’re ethically fortunate that we find Mr. Unger’s work aesthetically superior.

    • h3llc4t, breaker of office dress codes says:

      @floraposte: Excellent point. I wonder how many of us would honestly use the power of our wallets for the original artist’s benefit if the original was butt-ugly.

  42. michelsondl says:

    I just wanted to say that the photos really give us an understanding of why one is so much cheaper. The knockoff ones look like a second grader got ahold of his dad’s welder and plasma cutter, whereas the original artist’s work is top notch. I would be willing to bet that on closer inspection the differences are even more obvious.

  43. Sanspants says:

    Doesn’t this happen in the music industry all the time?

  44. The Porkchop Express says:

    @Radi0logy: This sums up why I don’t sell my harnesses.

  45. billy says:

    Musical works are copied, but that’s not the entire issue here.

    The issue here is whether the 1st work gets any copyright protection in light of the fact that it may be considered a useful object.

    Musical works are not considered useful objects.

  46. hansn says:

    I think I’m going to take the unpopular defence of Mr. Wittrig. Although I would bet dollars to donuts he is on the wrong side of the law, and seems to be (by the representation here) of questionable personal character, I think the copyright claim is ethically overreaching (as are many such claims).

    The sole legal purpose of copyright is to allow compensation for research and development; they are categorically NOT intended (legally or historically) to allow an individual to maintain monopolist pricing. If research costs are minimal (as they appear to be here), then it is in the public’s interest to not enforce a copyright claim.

    The original purpose of copyright was to ensure that an author would be compensated. In the case of a book, the cost of writing the content greatly outweighs the cost of manufacture. A copyright prevents another publisher from reprinting content without compensating the author, which removes the incentive for authorship (something contrary to the public interest).

    • lihtox says:

      @hansn: Research and development? It sounds to me like you are confusing copyright and patent. If an artist had painted on canvas the design that Unger has on his bowls, it would be copyrighted, no question, whether any research was involved or not. (I’m sure there was plenty of development in both cases.) If you want to argue that the painter doesn’t deserve copyright either, then that’s a different matter, but I don’t see that the two cases are ethically different, and if Unger’s copyrights are voided, it is due to a technicality of the law rather than the spirit.

    • PillowTalk says:

      @hansn:

      So if you acknowledge that the original reason for copyright was to compensate the author, as writing took a lot of time and energy – why would you not recognize that this can also apply to the artist? These things probably take a lot of time to make, not to mention the cost of materials (and especially the cost of all the metal working tools and maintaining a metal working studio, he could even have to pay rent on his studio space). Your average artist ends up paying himself $8-10 an hour (after mats) on the time spent on their projects, by eliminating his copyright and forcing him to price down, we’d most likely be forcing him to price his products lower and thus pay himself below minimum wage.

      So why is protecting writers ok, but not artists? Artists deserve to be fairly comepnsated as much as authors. Just because it ‘seems’ like this is expensive? A lot of people don’t fully understand how long stuff like this takes.

      Also yes, it soudns like you’re confusing copyright and patent.

  47. nstonep says:

    I have an idea…why not take all the legal mumbo jumbo documents throw em in the fire pit and have the two guys just shut up.

    Seriously…it’s about as artistic as an elephant taking a dump on canvas (which is subsequently sold to Steve Wynn so he put his shoulder through it).

  48. LIJ says:

    The issue here is really a hotbed. The artist kind of has his hands tied because fro
    what i understand, this is not a copyright issue. Patent law is en enitrely different animal. The minute an artist creates an item that qualifies as “functional”, it is ONLY subject to patent regulations. This is the problem fashion designers have in trying to protect their designs. As I understand it there is a big window of vulnerability in this kind of “no man’s land” of IP.
    Not to be pessimistic, but if a year has passed without artist asserting rightful ownership through the patent office, it is pretty much public domain and a done deal, sucky as it is. Within a year the artist could still file, dispute, and sue for profits if this other company has filed a pending patent application. The basis of their argument seems to be tha this item is not covered by copyright, so to sue they must be asserting a patent? Please any expert correct me if I am wrong!

    • billy says:

      @LIJ: >>>The basis of their argument seems to be tha this item is not covered by copyright, so to sue they must be asserting a patent? Please any expert correct me if I am wrong!

      I think the basis of Whittrig’s argument is that the pits don’t enjoy copyright protection because they are not copyrightable subject. It’s not clear from the article, but it sounds like Whittrig is looking for declarative judgment about that. He also wants payment for the hassle he’s been through if it turns out that he’s right.

      In my opinion, his view of “useful objects” is a bit overbroad when one considers that the design aspect can be separated out (and copyrighted) from the utilitarian aspect (the realm of patent). Unger registered the works as “sculptural” and that’s all that copyright can protect (the sculptural elements).

      Whittrig, though, doesn’t have to frame this as a patent issue. I’m going to assume that nobody owns a patent on steel fire pits, anyway, and that there’s no ability to patent a fire pit any more (unless there’s something added to it that’s not obvious). It’s pretty clear, though, that the issue is in regards to the overall artistic design of the objects, not the fact that they can be used for fire. So, I don’t see any reason for anybody to “assert a patent.”

      On the other hand, it doesn’t seem that the design aspect of the fire pits is particularly “original” either. The artistic aspect might not be copyrightable for that reason.

      Maybe Unger should assert a trade dress claim. It’s probably the most applicable IP protection here.

      • LIJ says:

        @billy: I am going to have to research
        trade dress now!

        You hit the nail on the head I think. Artist can legally continue to make his pits without fear of legal action, so the best he can do is get out in front of competition by continually innovating and improving his product.

    • Sampsonian says:

      The trade dress argument is certainly a possibility; a particular clothing designer got some traction with it this year.

      With regard to the patent issue – it’s important to keep in mind there are three types of patents: a utility patent, which we normally associate with the term “patent” in which claims are directed to the utilitarian features of a device; a design patent, which is directed to the aesthetic/design elements or features of a utilitarian object; and a plant patent. A design patent would have squarely covered the appearance and the aesthetic features (e.g., swirls on the rim) of the fire pit, and under the current standard for design patent infringement, I think the Wittrig design would be found infringing, subject to, of course, what’s in the prior art. If that object embodying all of the aspects of any prospective patent has been in the marketplace for longer than a year, it is part of the public domain. Given the time line, it’s likely that is the case.

      With regard to “originality,” it’s important to remember that the threshold is extremely low – even re-arranging phone book listings in a certain way have been found to meet the requirement. I think there is sufficient originality in Unger’s design.

      • billy says:

        @Sampsonian: The thing is, though, that in order to get patent protection, you have to register, right? Unger didn’t do that, so he MUST rely on IP protection that does not rely on registration: copyright or trademark (or, trade dress). THAT’s why this isn’t a patent issue now.

    • Michael Belisle says:

      @LIJ: The USPTO says

      There is an area of overlap between copyright and design patent statutes where the author/inventor can secure both a copyright and a design patent. Thus an ornamental design may be copyrighted as a work of art and may also be subject matter of a design patent. The author/inventor may not be required to elect between securing a copyright or a design patent. [www.uspto.gov]

  49. biggeek3 says:

    Considering each of these battling fabricators could probably bang one of these firepits out off of a template in an hour or two…Them being just the chopped off end of old propane tanks…Both seem highly over-priced.

    • RobertBaron says:

      @biggeek3: They’re priced neutrally. Price, in this circumstance, is based on what people are willing and/or able to pay and it would appear there’s a market at both price points so they are priced correctly. Price isn’t based on simply the effort or cost of making the object. There are other costs involved like marketing, sales, employees, equipment, etc.

      • biggeek3 says:

        @RobertBaron: Thank you for the unnecessary econ 101 review, Professor Crabapple.

        The fact still remains that they’re made out of the ass-end of scrap propane tanks with maybe a little filigree cut out and a lot of art school “artisanal” nonsense thrown in to sell them.

        Ov-er-priced.

        • RobertBaron says:

          @biggeek3: If price is based solely on the cost of material, then everything is overpriced by your rationale.

          • PillowTalk says:

            @RobertBaron:

            Exactly. How do you know how much time it costs him to make this? How much money he might have to invest in the upkeep of his metal working materials? How much he has to pay for rent ton his studio space? How much he has to pay to maintain his business and advertising? I keep saying this to people, but I’ve known a lot of artists who make hand-made stuff, and on average (after the price of mats and maintaining all the other costs of their business) they make about $8-10 an hour. If they want to make ANY sort of return on the amount of time invested, they have to price things fairly expensively. I hate this attitude you’re showing, because so many people tell them their art is over-priced without even realizing that if they price it lower they might as well just go out of business, because making below minimum wage as a profit is not going to cut it.

            • PillowTalk says:

              @PillowTalk:

              Basically, to expand – the fact that mass-marketed items can be priced so much lower and more competitively seems to remove us a lot from understanding exactly how much stuff like this costs to produce, and a lot of people get entitled. They’re so used to seeing things cheaper, so they think that something like this, hand-produced but priced higher, MUST be over-priced. The reality is that price of goods right now is actually obscenely low and is damaging the world economy – items SHOULD NOT be priced as low as they are at Wal-Mart or places of the like. But people always want cheaper cheaper cheaper, this is overpriced omg, I can get it so much cheaper at _______, so big companies strong-arm the producers into producing for cheaper, skilled labor is fired and work is outsourced to people you can pay a penny an hour.

              The expectation that things should be priced lower, lower, lower to be competitive at all times is ultimately damaging.

  50. LIJ says:

    Hmm but the more I read, the more it seems a really ambiguous case of decorative non-functional copyright, vs. Patent. Time for a good IP lawyer. If the mass producer can show anything similar prior to artist’s work, he might just win his case, sadly.

  51. RobertBaron says:

    This is a tough case. The first 2 designs are not exact replicas so it’s not like they took the original and copied it exactly. These aren’t trademarks which might be protected in that instance. This is basically the equivalent of a common practice in the music industry (notably, the royalty-free market of library music) called “doing it sideways” where a musician takes a popular sign and changes it enough (alters a few notes, changes the rythym, etc) so that it’s a new song albeit one that sounds like a familiar song. It looks similar but it’s not the same.

    The 3rd design, though, looks exactly the same. I have a feeling the judge will side on the 3rd design being infringement but will let the other ones through.

    • fantomesq says:

      @RobertBaron: I agree… for this to be copyright infringement, there has to be copying of the actual design. In the first two he MAY have copied the idea of the design but he didn’t copy the actual design elements themselves. It would appear that the third item has the fewest copyrightable design elements and thus the weakest copyright claims s although this is the closest to an actual infringement, the protection is so weak that the damages will be minimal – there is very little in the third firepit beyond the purely functional.

  52. fitzhume says:

    So the guy whose argument is “it’s not art” has the website firepitart.com? Shouldn’t he quickly change it to firepit.com?

  53. TechnoDestructo says:

    Shouldn’t this be about design patents, not copyrights?

    • LIJ says:

      @TechnoDestructo: Yes it should, exactly. Problem is that to obtain a patent, designer must show new and ” novel” approach to it’s actual function. Decorative elements won’t cut it. From what i have learned, decorative stuff on a functional object is very hard to prove copyright eligibilty unless distinct and never seen before.
      It’s like trying to get patent on an origami crane that has holes in the wings and is
      made from fermented animal hide dyed plaid. You added something unique, but nothing that falls under obvious legal protection.
      People are trying to change copyright laws to encompass that sort of thing but it may be years.

  54. smiling1809 says:

    ButWittrig’s own website has the word art in it, which means he is selling it as art, rather than a utilitarian object? Is he stoned???

    • Sampsonian says:

      @smiling1809:

      Not necessarily. Just because advertising copy indicates as such doesn’t make it a conclusive finding that has been reached upon review under the appropriate legal standards. Certainly those statements may have some persuasive value (discrediting Wittrig is probably the most they’ll get out of it), but it won’t be case-dispositive.

    • silver-bolt says:

      @smiling1809: Just because it artful does not make it copyrightable.

  55. lihtox says:

    Couldn’t Unger just say that the fire is part of the sculpture, and therefore the whole thing is decorative?

  56. Jage says:

    I’d buy from Unger, his fire one is far superior to the copycat’s.

  57. internetsguy says:

    i find it hard to believe Wittrig can uphold his claims that the Unger’s fire pits are not decorative when he’s selling almost exact replica’s at his site firepitART.com. i mean, art is in his site’s name, come on now.

  58. Darkneuro says:

    Unger’s designs show a completeness of line that Wittrig’s lack. It’s most obvious in the first 2 side-by-sides, but you can see the completeness even in the simpler designs. The curves on the curlicue design are longer and wrap more, and the triangular design is more open (and probably builds a better fire).

    That said, since Unger has filed copyright all the way through (YAY!), I don’t see where a judge would have any issue saying “Uh, Unger completed all the paperwork and registered it. Wittrig hasn’t, and there is ART involved (as previously pointed out, even Wittrig calls it art), copyright goes to Unger.”
    Fight it, John. Fight it with everything you have.

    • Michael Belisle says:

      @Darkneuro: I agree. It’s like Eames Aluminum Group chair and an unnamed knockoff. Which do you think is the original?

      Anybody with a little design sense should be able to tell, even if you aren’t familiar with Eames designs.

      Design knockoffs are not a new or even remotely uncommon problem. Any design that’s successful will have to deal with knockoffs. But for some reason, I only recall hearing about lawsuits in recent memory when Apple sues companies that make (iMac|iPod|iPhone) knockoffs. I’d imagine other original designs are vigorously defended as well, but just not reported as widely.

    • billy says:

      @Darkneuro: >>>That said, since Unger has filed copyright all the way through (YAY!)

      But filing (actually, registering) a copyright doesn’t mean that one has a more valid copyright. Copyright attaches the moment the work is “fixed in a tangible medium of expression.” *IF* Unger’s work is copyrightable subject matter, his copyright attached at the completion of the work, NOT when he registered. Registration is not required for copyright protection now (so Unger didn’t even have to register for him to assert his rights).

      The whole argument that Whittrig is making is that no copyright attached to the Unger’s work b/c the fire pits are not copyrightable subject matter.

      He’s probably wrong, but this case does not hinge on the registration.

  59. ElizabethD says:

    It’s cut-and-dried to me, but I’m not a lawyer, although check back in 6 years and I’ll tell you if my daughter is.

    Anywho. I’m with Unger; I think it is OUTRAGEOUS that Wittrig stole his designs and is acting self-righteous about it. What an ass. Seriously. And you can quote me on that.

    RELATED: If you don’t have a lot of property around your house, *please* consider the effects of a firepit on your immediate neighbors. My son and I suffered chest-rattling asthma attacks every time the neighbor in back of us fired his up. And everything in our house reeked of smoke for days afterwards. We finally persuaded him to stop. Common sense, peeps!

  60. mariospants says:

    This is one of the reasons Hyundai can get away with making cars whose designs reek of other’s perspiration. I’ve never seen Audi or Mercedes or Jaguar sue Hyundai for stealing elements of their car designs but if push came to shove, the copyright court could award damages.

    A legal precedent was set a long time ago when Philips sued Remington for copying its 3 blade razor head. Remington argued (similarly to firepit jerk/copier above) that it was a “utilitarian solution” and therefore not covered by copyright. An industrial designer was hired as an expert witness and he basically put the kibosh to that argument, stating that a 3 blade head was NOT the only solution to the problem (where 2, 4 or 5 heads could also suffice) and that the arrangement of the heads was a unique solution that Philips had every right to protect. Philips won that court battle as a result. I would side with the original artist on this one unless it was proven that his designs are not completely original (I’ve seen candlestick holders that look extremely familiar).

  61. catastrophegirl chooses not to fly says:

    what makes me very sad is the possibility that if Wittrig wins, this case will bankrupt Unger and Wittrig will make them as long as he can until he gets bored with it, leaving the whole thing behind him. and Unger could end up struggling to compete with an army of knockoffs who devalue the concept.

    it reminds me a little of two toddlers – one has a favorite toy in the whole world and the other one sees it and fusses until some well meaning adult gives it to him to make him quiet. 5 minutes later, after coloring in the eyes, chewing on the extremities and dipping it in milk, the second toddler throws the toy on the floor, leaving the one whose favorite it was heartbroken.

  62. silver-bolt says:

    None of those designs are unique, and subsequently, I highly doubt that he came up with the design.

    Unless he is going to sue people who make candle holders, dinner plates, or trays in general, as there are plenty triangular shape plates like the last.

    And flames on a fire pit? Anyone that has ever done old school hotrod flames would have a case against him then.

    His designs are not original. He should suck it up and design something of his own, or start undercutting the other guy. Otherwise, if the “copy-cat” really wants to get nasty, he can look up prior art, and prior copyright holders for the same design in different categories, and sic them on the original for falsly filing a copyright.

  63. Buffet says:

    I’m gonna buy it from whoever sells it cheaper. If one sells it for less, so be it.

  64. jameslutz says:

    Okay, that is it, I am starting a new company:

    Monster Firepits

  65. SoCalGNX says:

    Support the artist. And let karma deal with the imposter.

  66. tnleo says:

    So Wittrig doesn’t believe the firepits are artistic, yet he sells them on a website with the word “ART” in it’s name. Sounds like Wittrig needs to change his website to http://www.FirePitUtilities.com

  67. A Pimp Named DaveR says:

    The answer to this is actually pretty clear: You buy from the cheaper guy.

    If he’s improperly ripping off the original artist, the original artist will prevail on his copyright infringement claim, and the infringer will have to pay the original artist damages.

    If he’s not improperly ripping off the original artist, there’s no reason not to buy from him.

    Either way, you save money.

  68. billy says:

    @Sampsonian: Umm, I completely understand all of that…that’s why I was explaining why this is not a patent case.

  69. Johnny2Bad says:

    There is really nothing tough about this at all.Mr Unger went about getting copyrights when a copyright is not appropriate. His drawings of his designs? Copyrighted. No problem.

    The actual object depicted in the drawing? Not subject to the same copyright; in fact it can’t be copyrighted (in the way Mr Unger thinks it can; as was mentioned, if you own the copyright to the Mona Lisa, no-one can put the Mona Lisa on a firepit, but a few waves of simulated fire are not original enough).

    It’s possible Mr Unger is either misinformed himself or had very, very bad advice. There is in place a means to protect his firepit designs, but he didn’t avail himself of that; he though a copyright would do. As we’ve said, a copyright doesn’t apply to his firepits.

    He should have applied for and received a registered industrial design. You know, the R in a circle, not the C in a circle. Had he done that, he would have a right to prevent others from copying his design.

    Registered designs are the things that keep people from selling exact copies of Ferraris, or Movado watches, or iPods. They are like a trademark, except a trademark is just a mark on an object (piece of paper, fabric on a coat, badge on a car, etc); a Registered Design covers an object itself and how it, basically, looks.

    Next on the list would be patents, which cover how things work. A patent for a firepit probably would not be granted; it’s been done before and besides, it’s “obvious”, which is grounds to reject a patent.

    Copyright? He hasn’t a chance. Registered Design? He would be walking away with money. Patent? Not applicable.

    He screwed up, and failed to protect his design with the methods available to him. Anyone can take them and run with it.