29 June 2018Copyright

Elon Musk in copyright spat over flatulent unicorn

A gassy unicorn is this week at the centre of a copyright dispute involving entrepreneur Elon Musk, who is well-known for his development of electric vehicles at Tesla.

According to posts on Twitter, Musk is currently facing allegations that he “ripped off” an artist in the US by using the artist’s work to promote Tesla’s sketch pad feature without permission.

Tesla said the new feature allows “driver and passenger to unleash their artistic talents” by drawing on a touch-screen. They can even submit their creations to Tesla for an opinion.

Potter Tom Edwards runs pottery business Wallyware and sells ceramic items featuring his designs and artwork.

In 2010, Edwards created an image of a farting unicorn, which was featured on mugs and sold by Wallyware.

Edwards said the inspiration for the mug came from fracking, the "environmentally unfriendly way to get coal out of the ground”.

He added: "Since half of our electricity comes from coal, the electric car isn’t quite as magical as it seems.”

Musk tweeted a photo of the mug in February last year, where he referred to the item as “maybe my favourite mug ever”.

Two months later, Musk tweeted a very similar unicorn image as part of a promotional campaign related to Tesla’s new sketch pad feature. Musk didn’t credit the image, and many assumed he had created it himself.

Tesla’s 2017 Christmas card reportedly featured the unicorn drawing, too.

On Wednesday, Edwards’ daughter, who goes by Lisa Prank on Twitter, posted a tweet accusing Musk of “ripping off” the unicorn art.

Musk replied to Prank, saying that Tesla’s sketch was “similar” to the mug but was “chosen randomly” by Tesla’s software team as an example of the new feature.

He added: “We can change it to something else if your dad wants.”. The tweet has since been deleted, but can be seen on  BBC News.

Prank responded: “Your company has been using his creative property for a year without credit or compensation—don’t you think artists deserve to be paid for their work? Maybe you can respond to the letter his lawyer sent you and you guys can work something out.”

Musk said the image Tesla used “was actually someone else’s drawing” and Tesla “gained no financial benefit” from it. He claimed he has asked his team to use a different example going forward.

Charlie Winckworth, partner at Hogan Lovells, said it isn't uncommon for high profile individuals to end up "vulnerable to copyright allegations", particularly in the US "where treble damages and jury trials increase defendant risk considerably".

"Many defendants faced with that risk choose to settle rather than fight", Winckworth noted,  but Musk, always a proponent of a good challenge, has so far declined to do so.

However, Winckworth noted that Musk's decision to delete his tweets could indicate that a resolution is on the cards.

In response to Prank’s comment about Edwards’ lawyer, Musk said on Twitter that Edwards “can sue for money if he wants, but that’s kinda lame”. He also claimed that the extra attention has “increased his mug sales”.

The following day, Musk took to Twitter to inform the public that he has already offered to pay “the guy who drew it”, and also that he believes artists should be compensated for their work.

In an interview with The Guardian, Edwards said: “I love the fact that it’s in the cars, but I just want them to do the right thing and pay me adequately for it.”

He also said that he had talked to numerous lawyers who agreed that this is a very clear case of a copyright violation, particularly as Musk had already tweeted an image of the mug and acknowledged that it was someone else’s work.

Matt Jones, partner at EIP, said: “What we have here is one party being accused by another of copyright infringement and, apparently, admitting to the actions they are being accused of—but refusing to pay compensation to the creator.”

According to Jones, the person accused of infringement would typically argue that there are significant differences between the works, so no copying has taken place. Musk has not done this.

Jones added that, if anything, Musk is being “provocative” by implying that Edwards should be grateful for the attention.

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More on this story

2 July 2018   US Magistrate Judge Valerie Cooke has granted Tesla’s request to subpoena companies including Facebook and WhatsApp to preserve “critical evidence” relating to Tesla’s recently-filed trade secrets lawsuit against a former employee.
23 July 2018   After causing a stink on social media last month, a copyright dispute involving Elon Musk, a potter and a flatulent unicorn has been settled.