Copyright, Elon Musk and the Farting Unicorns of Doom
What are laws for? To preserve the status quo? To prevent people from doing inconvenient things for the (alleged) good of society? To punish entrepreneurs for making lots of money and being entrepreneurial?
Or, maybe, laws are there to protect the little guy from the bigger, more powerful guys in this world. Let’s discuss this latter, slightly less cynical, view.
Picture the scene: you’re a relatively little-known artist. One day you find out that a billionaire business guru is a fan of your work. You are delighted! But then you find out that this billionaire’s company is apparently using works very similar to yours (so similar that they must surely have been copied) in their marketing and their products. They are doing all this without having offered to pay you a penny, and without even informing you as a courtesy. When you mention this to them, they tell you (in so many words) to take a hike. How would you feel?
That is what (allegedly) happened to artist Tom Edwards. The billionaire in question is Tesla mastermind scientist Elon Musk. A quick search of the terms “Elon” and “farting unicorn” will reveal dozens of articles discussing the facts of the case.
In brief summary, it seems that Mr. Edwards accused Mr. Musk of using a copy of artwork from his pottery (an image of a cartoon unicorn farting electricity) in connection with several parts of Tesla’s branding, including using the artwork as an icon in Tesla’s operating system and on a Tesla Christmas card. Edwards was looking to settle the dispute amicably; however, Musk is said to have refused this approach.
What stands out in this case is that the alleged infringer did not seem to be saying, “I didn’t copy your art” or “The art I’m using is very different to your art.” That is what people who are alleged to have infringed on a copyright usually say. There are good reasons for that. Absence of copying and objective dissimilarity between the original and the alleged copy are both good defenses to copyright infringement.
Rather, the alleged infringer seems to have said in a series of tweets (which since have been deleted) things like:
- “[The image was] chosen randomly by my software team as a joke”,
- “We can change it to something else if [the copyright holder] wants”
- “[It was] actually someone else’s drawing”
- “We gained no financial benefit”
- “If anything, this attention increased [the copyright holder’s] sales”
- “[The copyright holder] can sue for money if he wants, but that’s kinda lame”.
So, moving away from this specific example for a moment (because, who knows, it might all have settled amicably by the time this article comes out), let’s say hypothetically that you’re a little guy and you believe your copyright is being infringed by some big that says these sorts of things to you. How relevant are any of those points to your potential copyright infringement case? Let’s look at them one by one:
- The image was chosen randomly: That’s fine, but generally speaking, the motives for copyright infringement don’t change the fact that it is an infringement; there is no requirement for malicious or mercenary intent.
- We can change it to something else if you want: Well, that might address future acts of infringement and mean that it is not necessary for the copyright holder to seek an injunction, but it does not address the question of damages for past acts of infringement.
- It was actually someone else’s drawing: One doesn’t have to copy an original work directly in order to infringe copyright. One can also infringe copyright by copying a copy of an original work. To give an example, let’s say person X creates an artwork, and person Y copies it onto a canvas without permission, and then person Z copies person Y’s canvas and uses it in an advertising campaign. In that scenario, person Z will be infringing person X’s copyright, even though they copied it from someone else’s drawing.
- We gained no financial benefit: What benefit the infringer did (or did not) gain from the infringement does not make it more or less of an infringement. Also, in this sort of case, the damage suffered by the copyright holder is typically calculated on the basis of the fee that a reasonable licensee would have paid in order to use their work, so in that context the actual financial benefit to the infringer is neither here nor there.
- If anything, this attention increased your sales: Again, this is not relevant to whether or not there was copyright infringement. Also, in terms of damages, if they are calculated as set out above (i.e. on the basis of a reasonable fee) then the other benefits that the copyright holder might have enjoyed as a result of the infringer’s use are not relevant. Putting that another way, if the infringer had paid a reasonable fee, and used the work under licence, then the copyright holder would have enjoyed both the fee and their increased sales as a result of the use by the infringer (who in that case would have been a licensee).
- You can sue for money if you want, but that’s kinda lame: Hey, suing people is some people’s job! But to be serious for a moment, should one regard going to the court to recover damages (and costs) from an intransigent infringer in order to get what a reasonable licensee would have paid you in the first place as being “lame”? Lots of people would call it “seeking justice.”