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]
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youthoughtwewouldntnotice (Thanks to catastrophegirl!)
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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.
@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.
So the guy whose argument is “it’s not art” has the website firepitart.com? Shouldn’t he quickly change it to firepit.com?
Shouldn’t this be about design patents, not copyrights?
@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.
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???
@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.
@smiling1809: Just because it artful does not make it copyrightable.
Couldn’t Unger just say that the fire is part of the sculpture, and therefore the whole thing is decorative?
I’d buy from Unger, his fire one is far superior to the copycat’s.
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.
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.
@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.
@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.
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!
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).
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.
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.
I’m gonna buy it from whoever sells it cheaper. If one sells it for less, so be it.
Okay, that is it, I am starting a new company:
Monster Firepits
@jameslutz:
HA HA HA HA Great comment.
Just don’t put an energy drink in that firepit.
Support the artist. And let karma deal with the imposter.
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
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.
@Sampsonian: Umm, I completely understand all of that…that’s why I was explaining why this is not a patent case.
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.