The Firebowl Controversy

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.

1. Are the firebowls copyrightable at all?
2. 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.