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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