Wittrig vs Unger: Imitation is NOT Always Flattery
Various works by sculptor John T. Unger.
John T. Unger is a fabulously inventive artist, environmentalist, writer, small business owner and the creator of copyrighted sculptural Artisanal Firebowls. He crafts his wares with primarily recycled or re-used materials, designing for permanency and functionality. His work has been featured on Etsy, BoingBoing, Neatorama, and by Craft Magazine, Variety and VenusZine, to name only a few.
Right now Unger’s mired in what he has dryly referred to as “an unwanted education in copyright law” and boy, does it sound like FUN! Unger, who obtained legal copyright a while back to protect his original sculptures from piracy, says a man by the name of Rick Wittrig, owner of FirePitArt.com, has not only begun manufacturing and selling products which are extremely similar to Unger’s, but has even gone so far as to bring a federal lawsuit against Unger to have the copyrights for Unger’s own original artwork overturned.
Repeating for emphasis: Unger is being copyright-sued by a guy who makes knockoffs of his own work. Wooo!
Fire bowl, mask, and “fire imp” figurines by John T. Unger.
Attempts at settlement have failed. Unger, who has already spent $50,000 fighting against Wittrig, says that “seeking a judicial ruling in federal court will cost more than any artist or small business can afford on its own”, yet the lawsuit continues to move forward. Apparently, Wittrig has money to burn, so to speak. Unger isn’t taking it lying down:
A life in the arts is all I have ever really wanted. After more than 20 years of working towards that goal I have achieved success… It isn’t easy to make it as an artist and I didn’t have a lot of initial support. When I started my art business as a full time occupation I was homeless, $20,000 in debt, and had few tools but a laptop. I joke that “I did it with nothing, because nothing is free,” but there’s truth in this… I built what I have now from the ground up because I was passionate enough to keep doing the work no matter what else happened.
I don’t understand why a person would fight as hard as Mr. Wittrig has to profit from the work of another. It baffles me because I have devoted my life to making things which are unique and to marketing them as unique items crafted from a detailed personal philosophy. I don’t view original artwork as a commodity. I have no interest in imitation. If he had spent the time, energy and money that has gone into this lawsuit on designing original work, with its own story and its own unique appeal there would be plenty of room for both of us to succeed on our own merits.
Guys, I realize it’s important to pick one’s battles carefully in life. This might seem like an oddly piddling skirmish for me to throw in on, but honestly, supporting an artist like Unger is at the heart of why I got involved in an online community like Coilhouse in the first place.
If Wittrig wins by outspending, Unger could lose everything. Not just the rights to his own designs, but his house and his studio as well… basically everything he’s been working toward for roughly a decade. But at the heart of it, this is not about financial loss or gain. This is about not letting a bully with a big wallet ruin a truly creative person’s reputation and credibility. When basic protections like these are overturned, it weakens the law for all artists.
We can help: spread the word and if you can afford to, donate a buck or two to Unger’s defense fund. If you have a bit more spending money on hand, check out his incredible, lovingly made fire pits or other pieces– the integrity and beauty of Unger’s work speaks for him better than any press release ever could.
October 27th, 2009 at 8:03 am
I’m still a little confused about this story – how can one guy prevent another guy from making his art? I really don’t see what Unger stands to lose (I’m probably missing the point here) – so ya, it sucks that this other guy is stepping on Ungers artform – but why can’t they both make these things? I mean, if I paint still life of cake, and another guy paints still life of cake (which I don’t, but some ppl out there seem to love this genre) then we bot h sell our paintings of cake and nobody sues anybody….why did this become a battle? How can one human copyright what is essentially a drawing of a devil cut out of metal? I don’t think that should be allowed! My god, if someone had copyrighted chiaroscuro where would art be?
October 27th, 2009 at 8:21 am
Gawd, that is totally sickening. I’m a broke-ass artist, but I laid down a ten-spot for this cause. May others do the same.
I used to think that I lived in the Land of the Free. Now I know that I am just another peasant like my ancestors. The legal system is for the convenience of the rich–never forget it.
October 27th, 2009 at 9:04 am
marctaro – It’s not the process or the subject matter depicted, per se, it’s the style in which they are depicted. A copyright wouldn’t keep others from making firebowls depicting dancing devils just firebowls depicting dancing devils that look like those created by Mr. Unger.
October 27th, 2009 at 9:44 am
marctaro: As I understand it, it’s not that Wittrig also makes neat firebowls. It’s that Wittrig makes cheap knock-offs of Unger’s firebowls.
Imagine someone that sells cheap Gucci knock-off bags suing the company. It’s like that.
October 27th, 2009 at 12:12 pm
I am quite amazed that this con man, has just copied the design. His are rough is the finish and lack the subtleties of Unger’s work.
He also apparently impersonated Unger in a few occasion, when some of Unger’s clients found him in art fairs. That in itself is illegal.
Unfortunately I cannot help financially, as I am myself a starting artist, but I have noticed that FirePitArt has a bit of a presence on the net. He is represented by a few art organisations, and have emailed them to inform them.
I would recommend the same
October 27th, 2009 at 12:27 pm
Wow, Meredith, this is a great post and I think it does a really good job of explaining the issues and what’s at stake.
@MarcTaro the reason that I don’t have a choice about fighting to defend myself is because he sued to have the copyrights removed but also for damages and legal fees. If I were to give up, then his suit wins by default rather than adjudication. He would be awarded damges and fees that would likely bankrupt me. It’s a tactic designed to bleed me dry either way. We have the stronger case I think, but the cost of a protracted battle is pretty extreme (incidentally I’m told that this is why very few lawsuits actually reach court before being settled).
@htiaf Thanks for contributing! I think the issues affect us all and I am not willing to let this case weaken other artists rights if I can help it. I think I can.
@Ross Exactly, it the style and form and design of the bowl. His are almost exact replicas of mine. I tried diligently to get him to just create designs of his own that wouldn’t cause confusion over authorship but he refuses.
@Mo the Gucci analogy is a good one. I think the situation is very similar to when you see bootlegs of fashion items or other designs protected by copyright and trade dress.
October 27th, 2009 at 1:19 pm
Well, I feel for the guy, (I’m an artist too) – but on the other hand, I don’t think art should be though about in terms of copyright. A don’t get how either of these two fellows can ‘own’ the idea of a decorated bowl.
If artist can own a subject – then hey, we’re all out of work, as it’s all been drawn before. I’m not blaming Unger here – I’m just really worried about the idea of any artist being blocked from creating imagery.
If I make it with my two hands – I should be allowed to make anything I choose! Shouldn’t I? If I were to chose to make something that ‘steals’ another guy’s idea – well, that’s lame, and the public will decide who’s doing it better won’t they?
I know plenty of artists in the illustration field who have had to deal with younger guys ‘poaching’ their style – but on the other hand, sometimes those young thieves go on to be great artists later in life – so who’s to say?
October 27th, 2009 at 1:42 pm
Hey John – Cool to meet you. Sorry to hear about your troubles – (seems we just cross-posted here)
It’s obviously evil to demand damages from you – I’m sure you’ll win this case if the facts are as I hear them! good luck with the legal process!!!
But I still have that confusing question – you don’t have a copyright to the whole idea of fire bowls do you? I understand that he can’t steal your EXACT designs…but (unscrupulous practices aside) shouldn’t anyone who wants to make a *slightly similar* metal bowl be free to do so?
I really don’t meant be a jerk – I’m totally not defending this guy….
glad to see the web coming to your defense too! :)
~m
October 27th, 2009 at 2:28 pm
Marc, yes let’s all paint cake, make money on cake and eat cake. There is enough cake for everyone. You cannot copyright cake, functional items, furniture or fire pits. Ask the folks at Blue Rooster about their Chimineas. Their statement on their site says it all, “Our chiminea outdoor fireplace products may be duplicated, but our quality and service can’t.” They continue to win in the marketplace.
October 27th, 2009 at 3:46 pm
its not the artists copyright that’s the problem. or that the other guy wants to make fire pit thingies too. creative commons fighters shouldn’t see a problem with that.
whats annoying is that the imitator is suing the original artist and it seems solely for the sake of causing him harm.
October 27th, 2009 at 4:13 pm
my friends and I are going through a similar issue with a kids show we created. It’s devastating to have this happen to any creative person or project. it’s not rite or fair and people never seem to understand the importance of credit where credits due.
October 27th, 2009 at 5:00 pm
I’ll bet Unger filed his copyrights as non-functional art. His fire pits are used to hold fire. That’s the problem. Functional Art or Furniture can not be copyrighted. Ask Blue Rooster about their Chiminea Copyrights. There is enough business out their for everyone. The only people who win in the courtroom are attorneys. Boys, get a life, work hard, stay out of court and move on….. or get your law degree! I believe in pixie dust…..
October 27th, 2009 at 6:09 pm
If any of you were making a living selling your original ideas, you’d know how Unger feels. Sandy, last time I checked, copyrights are not filed as such. marctaro, it is all about using Unger’s IDEA and DESIGN. The other guy can make firebowls, just put tinkerbell or some other disney design on them and see how long he lasts!
October 27th, 2009 at 7:05 pm
@John T. Unger
I’m probably not telling you anything you don’t already know by this point, but how’d the “prior art” defense go?
October 28th, 2009 at 2:54 am
Actually, I think Unger’s defense is most strong under Trade Dress, not copyright, and that isn’t required to be registered, though it is stronger if it is: I am concerned that if Unger has filed copyrights under the wrong category he may be at a disadvantage, but regardless, his development of his art in this form is pretty well documented.
http://en.wikipedia.org/wiki/Trade_dress
I think he has a very clear case for both counts of “inherent distinctiveness” as well as “secondary meaning” because of not only the artistic nature, bit also how much clear goodwill Unger has developed making his fire pits.
October 28th, 2009 at 8:47 am
Here’s an update from John T. Unger’s blog on what happened in the first 24 hours: http://bit.ly/2hyevr
October 28th, 2009 at 8:55 am
Thank you, thank you, thank you for picking this up, Meredith.
And no, derivative art isn’t the question here. It’s ripping someone off whole cloth, then turning around and suing the orignator of the art that is wrong, wrong, wrong.
Even John says it, if the guy would make his own designs, who the hell cares who’s making fire bowls? But straight rip offs?
No. Just no.
October 28th, 2009 at 9:55 am
Perhaps the ACLU could help?
October 28th, 2009 at 11:30 am
An interesting take on all of this by the Consumerist:
http://consumerist.com/5390539/copycat-company-sues-original-artist-to-void-copyright-claims
Wittrig’s response to their reporter, Chris Walters, was predictably snippy and deflective– pretty much exactly what you’d expect from someone who would rather build cheap copycats than come up with their own designs. As one commenter point out over there, the fact that Wittrig’s legal defense is that these are utilitarian objects when he himself is selling them as art (FirePitArt.com – Functional Steel Sculpture) is pretty nauseating.
Initially, Unger approached him with a fairly amicable, informal C&D, and said that he had no problem sharing the marketplace in their own niche, provided Wittrig actually created his own original designs: “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.” It was Wittrig that got the lawyers involved.
While there may be a bit of gray area legally speaking if some of Unger’s designs are deemed too generic, when Wittrig has made the decision to financially ruin someone he was blatantly ripping off, and then put forth such a hypocritical counter argument, he brought this shit storm down on himself.
What needs to happen now: Unger’s going to have to prove in court that his registered fire pit designs rise to the level of “original works of authorship fixed in a tangible medium of expression”. I think he can, and will, provided Wittrig doesn’t completely bankrupt him first.
Learning more about Wittrig’s various responses has only bolstered my own initial opinions on all of this. Quite frankly, I hope he gets his bullying, litigating ass handed back to him in court.
November 1st, 2009 at 10:39 am
@marctaro: in response to your question “But I still have that confusing question – you don’t have a copyright to the whole idea of fire bowls do you? I understand that he can’t steal your EXACT designs…”
The issue is that he has reproduced a large section of my work nearly exactly. I don’t own the concept of ALL firebowls, or even of all firebowls made from recycled propane tanks. I own the rights to specific designs which I originated.
And the biggest issue for me is not that someone else might profit from an idea, but that when my works are copied so closely, it creates confusion as to who the original artist is. The fact that I make original works is the backbone of my career as an artist. I mean, that’s my actual job description you know? Making original works of art.
I like to see other artists succeed and have done a great deal of writing, consulting, education and development to help other artists learn about business and marketing their work. It’s a mission that has led me to consult with companies like TypePad, PayPal and 1000markets.com because I want better tools for all artists to sell their work. For more background on that, see the forum topic at 1000markets here (must be a member, so I’ll quote below) http://www.1000markets.com/forums/406/topics/7498
[Editorial Note (from Matt, CEO of 1000 markets): I have come to know John Unger well over the last year. John is one of the hardest-working, most selfless artists I have met. Whenever we speak on the phone, he inevitably will turn the conversation to how he is helping other artists to be successful at their business. This whole conflict is much bigger than John; this is for all artists, everywhere. John is risking his livelihood and his financial well-being to defend the right of an independent artist to be compensated for their originality. Please consider helping him in this fight.]
November 4th, 2009 at 12:36 pm
What a disgusting situation! My sympathies to Unger. Indeed, I hope some good comes of this travesty!
November 5th, 2009 at 5:46 pm
Wow! I had no idea John was going through all this! I’ve know John for many years. I used to sell his original artwork at my shop “BELOVED” (which I closed in 2005) here in Chicago. I showcased and sold “Intuitive” and “Outsider” Art.
John has used found objects and recycled materials in his work way before “UPCYCLED” became a marketable term. He used broken glass, rusty nails, old wood, tin cans, bottle caps and anything else he could find dumpster diving in Chicago. If you knew his style, you would see that his Firebowls are a natural progression from his previous works of art. Not only the designs, but the very idea is a natural progression. He used to make these beautiful lanterns out of old metal cans, he cut out designs very similar in style to what he’s doing with his Firebowls.
When John left Chicago and moved to the country, I’m sure I wasn’t the only one of his friends who wondered how the hell he was going to make a living as an artist in the middle of nowhere! Believe me when I tell you it was his passion for art and his inventiveness that kept him going during some very hard times! (If I remember correctly the first Winter he spent in the country, the roof to his studio collapsed due to heavy snowfall!) It was during this time John started working on larger works of art like his Firebowls. Not only did he have more space to work, but much better “junk” to make art with!
I was so happy to hear about John’s success when his Firebowls took off! It was a long road to success. He EARNED it with his own two hands, a creative spirit and by taking risks only a true artist would be willing to make!
This situation is an outrage! John is one of the hardest working artists I know. He’s not a materialistic guy at all…he rocks old Levi’s, wears beat up engineer boots and rolls his own cigarettes. He just wants a bit of Earth to call his own and to make his Art. It would be a tragedy if he lost everything he worked so hard for. This greedy man should not be allowed to profit from ripping someone else off! Please Donate to John’s Legal Fund!!! Every dollar counts!
John, if your reading this my thoughts are with you! I know something good will come out of this for you!
all love,
Lavona
November 22nd, 2009 at 12:09 am
Uhm, if you go the consumerist article :
http://consumerist.com/5390539/copycat-company-sues-original-artist-to-void-copyright-claims
it lays out that Unger sent a cease and desist letter to Wittrig, on the basis that Wittrig ‘copied’ Unger’s ‘original designs’
Original designs ? What, cartoon flames and crudely rendered wave motifs ?
I’m really happy that Unger has done so well, but his designs are about as ‘original’ as a ‘tribal’ tattoo from your local mall.
November 25th, 2009 at 3:40 pm
I am enjoying the rich irony that this discussion is taking place on-line- the greatest source of copyright infringement ever! How many people have been victemized by illeagal downloads and/or use of their muisc, ideas and images? I firmly believe that everyone, yes everyone has an inherent right to control the dissemination of their images and their intellectual products and nobody can misuse them alter them or profit from them without making appropriate payment or restitution. Nobody should be able to post your picture on the internet without a model release; no stills from your movie should be posted without your permission and the permission of the filmmmaker and the studio- if it’s not unanimous, it’s a no go- and nobody should be able to add your music to their ipod without paying you for it. Information should be free but art has a value, and therefore, it deserves a fair price.