Tuesday, November 03, 2009

This has me STEAMED!

This has me (insert bad word) STEAMED!!!!

An artist, (John T. Unger), a maker of sculptural fire-bowls made from recycled steel, is being sued by an imitator of his work to overturn his registered copyrights. I am using the term imitator specifically, as FirePitArt.Com LLC is not claiming the firepits they are manufacturing are in any way substantially different than John Unger's even in their lawsuit filing, as far as I can tell.

Waves O' Fire, from John Unger's site

Mr. Unger sent them a cease-and-desist letter, which was flatly refused. After several exchanges between legal counsels, Fire Pit Art filed suit claiming Mr. Unger's copyrights were invalid, and that Mr. Unger had damaged their business by informing businesses and arts organizations with which they had dealings of the controversy regarding the copyright of the designs, a practice which (from observation-I have no supporting documentation) seems to be common and legal in cases like this.

Now this upsets me at least in part because it appears to be a case in which a company or individual is trying to use the courts to strong-arm an artist out of their copyright protections, hoping the artist will be too intimidated or financially unable to fight the suit, which would result in a summary judgement against the artist.

This seems to be an all too common occurrence apparently, judging by other cases I have heard of, and ones which numerous bloggers and their commentators are mentioning.

But as I was thinking about this, it occurred to me that what is truly insidious about this case is that they are trying to use the courts to overturn his right to determine if his work is in fact 'art' in the first place!

Specifically, Fire Pit Art is, among other things, suing to have the courts declare that John Unger's work is NOT art, due to the fact that they are functional items.

According to the complaint filed by Rick Wittrig, owner of Fire Pit Art (available on the artist's webpage linked above):

"Defendant has continued to assert his allegations of copyright infringement, further basing them on the registrations of copyright claims made by Defendant...for a number of articles that are in fact outdoor fire pits, but were registered by the Copyright Office as “Sculpture/3-D Design,” on the basis of Defendant’s claims and representations." p. 3-4


"Defendant’s Fire Pits are functional, utilitarian and useful articles that are not
subject to copyright protection under The Copyright Act of 1976, 17 U.S.C. § 101 et seq." p. 5 (the law covering economic and proprietary rights of authors/artists)

The complaint seeks to have the registered copyrights cancelled on the basis that the fire-pits are not art and are therefore improperly registered. But it's more than the cancellation of the copyright registration.

If I have understood American copyright law correctly, an artist is NOT required to register a copyright to a piece of intellectual property in order to retain a legal copyright to it. It's a good idea to do so, as it can provide weighty evidence of that copyright, but it's not mandatory in order to legally own copyright on it.*

*Candid admission: My understanding of US copyright law in these matter is from reading about cases like this, and from online discussions and articles written by artists, writers, publishers, gallery administrators and agents, usually written to inform new writers and artists what copyright protections they have, and what responsibility they have toward retaining them. I'm not American and have not as yet felt the urge to read any official documents on the subject, though it's on my 'to do' list.

This is supposition on my part, but if Fire Pit Art can convince the jury/judge that John Unger's work is not art, then it can contend that he had no automatic copyright to it to begin with. And it sets a precedent in law (in a legal system that works in large part on precedent) that an artist does not have the legal right to determine if their work is, in fact, 'Art'.

(What makes the whole thing hypocritical is that not only does Mr. Wittrig call his company "Fire Pit Art", he publicly represents himself as an artist, and sells his knock-offs of Mr. Unger's work at Art fairs!)

(John Unger) has set up a webpage going into greater detail about this, and has decided to fight the matter in court, but he could use some financial help. There are fundraising details at his site. (Discounted Fire-bowls! Art in exchange for donations!) :)