Elon Musk and the ‘Gassy Unicorn’: IP Infringement or Just a Lot of Hot Air?

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Elon Musk found himself making headlines for all the wrong reasons recently over his company Tesla’s use of an image of a ‘farting unicorn’. The image was used to promote Tesla’s new in-car sketch pad feature and also appeared as a small icon within the software itself.

The image used by Tesla is very similar to an image created by Colorado potter, Tom Edwards, which features on his mugs together with the caption “electric cars are good for the environment because electricity comes from magic”. Fracking (a controversial method of extracting coal) was Edwards’ satirical target.

The unicorn image clearly amused Musk who tweeted a picture of the mug back in February 2017 commenting that it was maybe his “favourite mug ever”. This tweet helped raise Edwards’ profile, resulting in a modest increase in sales of the mugs.

Although Mr. Edwards was pleased to count Musk as a fan of his work, particularly given the fact that Musk has 22 million Twitter followers, matters became less cordial when Edwards discovered that a very similar image was being used as the icon for Tesla’s sketch pad app and in the advertising for this new feature with no credit given to Edwards.

A series of tweets were recently exchanged between Musk and Edwards’ daughter, Lisa Prank. Prank asked, “don’t you think artists deserve to be paid for their work?” to which Musk replied “have asked my team to use a diff example going forward. He can sue for money if he wants, but that’s kinda lame. If anything, this attention increased his mug sales”.

Does increased publicity and sales for Edwards mean that Musk is above copyright law?

Given the importance that Tesla will no doubt place on a range of intellectual property rights to protect its innovative products, Musk’s comments are perhaps a little surprising and suggest that he or Tesla have, on this occasion, not really considered the perspective of the rights holder (i.e. Edwards). Some may even suggest that Musk has perhaps demonstrated a disregard and indifference for Edwards’ intellectual property rights. The fact that Edwards may have enjoyed increased publicity and sales of the mug somewhat misses the point – as the owner of copyright in the image, Edwards is entitled to control how it is used and exploited.

It is possible that this matter will reach a commercial settlement at an early stage. Edwards has commented that “Elon Musk can be a hero for standing up for artists’ rights”. Whether we hear any more from Musk and Edwards’ daughter on Twitter on this matter remains to be seen. Interestingly, Musk has removed all posts relating to this debacle from his Twitter feed.

What could Edwards consider doing from an intellectual property point of view to protect his ‘farting unicorn’ image going forward? 

The image already attracted copyright protection; in the US it appears that Edwards has now registered the copyright. It is interesting to note that, by contrast, copyright is not registrable in the UK and arises automatically provided the work (in this case the farting unicorn image) is original in the sense that skill, labour and judgement were used to create it – the image is clearly original.

If the image takes on a life of its own as Edwards’ “brand” (e.g. a badge of origin of the goods and services he offers) then he may wish to consider protecting it with a registered trade mark.

Edwards’ image may also attract design right protection. For example, in the UK there is a comprehensive registered and unregistered design rights regime for protecting creative works.

What are the key take-home messages from this matter for artists like Edwards?

First, protect the intellectual property rights in your work. This can be done for businesses both big and small. IP protection can be done through registrations (if the right is capable of being registered) and/or by educating the public that your work attracts unregistered rights, for example, by putting an appropriate copyright notice and symbol on your website and other advertising materials.

Second, regularly police the Internet for any unauthorised use of your works and, if unauthorised use is discovered, consider all possible options for resolving the matter – a cost-benefit analysis is really important.

Third, consider carefully whether social media is the appropriate forum for airing your infringement concerns. Whilst it may have the greatest impact, you do not want to say anything which could, for example, undermine a later claim or settlement discussions or result in a groundless threats claim.

We will watch with interest to see if colourful farting unicorns continue to sprinkle their magic on Tesla’s products.

Photo Credit: Maurizio Pesce from Milan, Italia – Elon Musk, Tesla Factory, Fremont (CA, USA)

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