The Firebowl Controversy
By Jonathan Bailey • Nov 5th, 2009 • Category: Articles, Legal Issues, News
One of the other stories I missed while on hiatus involved and artist named John T. Unger who has found himself in the middle of a legal controversy.
Unger makes what he calls “firebowls”, which are decorative containers designed for placing a fire in. His bowls come in many different designs and range from very basic to extremely elaborate. Each bowl is hand made from recycled propane tanks and is for sale for anywhere from a little over $100 to almost $1500.
However, a competitor named Rick Wittrig, who operates the site FirePitArt.com began to make and sell similar bowls. Though it is debatable if they are infringing or are cases of parallel creation, the similarity was strong enough to confuse at least one of Unger’s past clients. Unger, who had registered all of his bowls with the U.S. Copyright Office previously, sent a cease and desist letter to Wittrig, who offered a flat denial and continued to sell the works.
It was then that, after some additional back and forth, Wittrig launched a pre-emptive strike and sued Unger. He sued to seek a declaratory judgment of non-infringement, a declaratory judgment of copyright invalidity (on the grounds that the firebowls are “utilitarian objects” and, thusly, are not subject to copyright protection) and for damages related to Unger’s discussions of the case, which, according to Wittrig, cost him at least one important client.
This prompted Unger to post an emotional plea for help on his site and launch a crowd-sourced legal fund, which is already over 190% of its stated goal. This also spawned a great deal of coverage including You Thought We Wouldn’t Notice, the Consumerist and TechDirt, which took a decidedly anti-copyright slant on the ordeal.
In the meantime, Unger has filed an answer to Wittrig’s complaint and also counter-sued, setting this case up to be one to follow for quite some time to come.
More to the Story
It is tempting to side with Unger, as the case has both a tinge of “David vs. Goliath” to it and a sense of unfairness as he was the one sued despite, by all accounts, being the original artist. However, the case isn’t as simple as that.
From Unger’s perspective, he is a legitimate artist who had his works ripped off by a company mass-producing very similar works that, when confronted, sued him to try and invalidate his own copyright claims. However, from Wittrig’s perspective, Unger is using a dubious copyright claim to threaten and scare away customer from his company, a legitimate competitor.
Who is right is a difficult question, but there are two key issues that need to be looked at separately.
- Are the firebowls copyrightable at all?
- If they are, does Wittrig’s bowls constitute an infringement?
The first question seems to be a likely “Yes”. Though Wittrig is right that utilitarian objects are not copyrightable (that bleeds into patent territory), decorations and flourishes added to such useful objects but not needed for their function can be. For example, a belt can not be copyrighted but a pattern on a belt can be. Wittrig further cuts into his own argument a bit by putting the word “Art” in his company name and both advertise their products heavily based upon the decoration and additional elements beyond just the “bowl”.
In short, it seems likely the decorative parts of the bowls can be copyrighted.
The second question, however, is much more difficult. For Unger to prevail, one has to first establish that his designs were original, creative and unique enough to warrant copyright protection, a separate question from if they can be protected at all. Then they have to show that Wittrig’s bowls are “substantially similar” to an “ordinary observer” to prove that they are unlawful derivative works.
This is not an easy task however, discovery, especially when looking at Wittrig’s process in designing the works, offer evidence for or against this.
As a result, though it is unlikely that Unger will have his copyright wiped out in this case, his victory seems to be much less certain than some feel.
I can’t really comment on the non-copyright issues too heavily as they deal mostly with what was said during the negotiation period and I haven’t read the content in question and these elements deal largely with local laws that I am not familiar with.
Bottom Line
As I look at both the complaint and the counter-claim, it’s clear that this isn’t a cut and dry case of an evil corporation trying to steal from a smaller artist and then erasing his copyright protection. Rather, it’s two sides with very differing views on how copyright applies to this case.
Though it is possible that Wittrig did lift elements of his design from Unger, the similarities certainly are there, that hasn’t been proved yet and any conclusions there should be held off on until after at least some discovery.
Though I find Unger’s situation sympathetic, both as the originator and as a small artist, legally this is clearly a more complicated case.
Lawsuits are rarely about good vs. evil and, in the end, this one really is no different.
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Jonathan Bailey is The Webmaster and author of Plagiarism Today, which he founded in 2005 as a way to help Webmasters going through content theft problems get accurate information and stay up to date on the rapidly-changing field. He is also a consultant to Webmasters and companies to help them devise practical content protection strategies and develop good copyright policies.
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This case is a perfect example of what is wrong with copyright law.
Most of Ungers works are, let us be frank, hardly the heights of human creativity. In fact, the only designs that were not taken verbatim by Wittrig were the more complex works. The “copied” works were geometrically trivial.
Unger's purpose is clear. He intends to assert absolute control over the very idea of making “firebowls”. He intends to use copyright to enforce what is normally granted by patents; a monopoly over an entire market. Our modern copyright law is so loose in its interpretations, and so absolute in its judgments, that he could well end up achieving this. No one will ever be able to make a similar sized or shaped firebowl without permission from, and a kickback to, Unger.
Here's the kicker. Patents typically expire after ~20 years. Copyrights never expire. If he wins his case, Unger will obtain an absolute monopoly over all firebowls and their sale, worldwide, for himself and his heirs in perpetuity, all at a single stroke.
So the question becomes; why should looking to start a firebowl business pay any heed to Unger's “copyrights”?
I dont' think it is quite that simple. The similarities in the design go beyond what would lead me to believe he was just going after every single firebowl maker. Otherwise, every hibachi maker in the world would be in trouble (at least theoretically).
There are similarities in the designs that go well beyond the fact they are both firebowls nor do I think he could achieve that. The definition for substantially similar would prevent that as it is important to note, as mentioned above, the copyright only applies to the decorative elements of the bowl not needed for its function.
In short, one would be free, even with a victory by Unger, to create firebowls with very different decorations. For example, I don't think Unger would ever have a case if you decorated your bowl with Christmas trees.
It's also not true that copyrights never expires. They expires 70 years after the death of the author or 95 years after creation in case of works of corporate authorship. Yes, that is much longer than patents and, yes, recent copyright extensions have kept works out of the public domain that would have fallen into it, but copyrights do expire and there are many works in the public domain currently.
The real question in this case is how similar are the new bowls to Unger's and was the intent to mimic his designs. Those are things we will have to learn later.
This case is a perfect example of what is wrong with copyright law.
Most of Ungers works are, let us be frank, hardly the heights of human creativity. In fact, the only designs that were not taken verbatim by Wittrig were the more complex works. The “copied” works were geometrically trivial.
Unger's purpose is clear. He intends to assert absolute control over the very idea of making “firebowls”. He intends to use copyright to enforce what is normally granted by patents; a monopoly over an entire market. Our modern copyright law is so loose in its interpretations, and so absolute in its judgments, that he could well end up achieving this. No one will ever be able to make a similar sized or shaped firebowl without permission from, and a kickback to, Unger.
Here's the kicker. Patents typically expire after ~20 years. Copyrights never expire. If he wins his case, Unger will obtain an absolute monopoly over all firebowls and their sale, worldwide, for himself and his heirs in perpetuity, all at a single stroke.
So the question becomes; why should looking to start a firebowl business pay any heed to Unger's “copyrights”?
I dont' think it is quite that simple. The similarities in the design go beyond what would lead me to believe he was just going after every single firebowl maker. Otherwise, every hibachi maker in the world would be in trouble (at least theoretically).
There are similarities in the designs that go well beyond the fact they are both firebowls nor do I think he could achieve that. The definition for substantially similar would prevent that as it is important to note, as mentioned above, the copyright only applies to the decorative elements of the bowl not needed for its function.
In short, one would be free, even with a victory by Unger, to create firebowls with very different decorations. For example, I don't think Unger would ever have a case if you decorated your bowl with Christmas trees.
It's also not true that copyrights never expires. They expires 70 years after the death of the author or 95 years after creation in case of works of corporate authorship. Yes, that is much longer than patents and, yes, recent copyright extensions have kept works out of the public domain that would have fallen into it, but copyrights do expire and there are many works in the public domain currently.
The real question in this case is how similar are the new bowls to Unger's and was the intent to mimic his designs. Those are things we will have to learn later.