August 7, 2018
Those who read our recent blog article entitled “A Farting Unicorn’s Musky Attraction!” will be familiar with the copyright dispute that recently engulfed Tesla tycoon Elon Musk over Tesla’s use of a unicorn farting.
To recap for those who aren’t aware of the saga, relatively unknown Coloradoan potter – Tom Edwards designed and produced a mug featuring a farting unicorn powering an electric car with a rainbow and smiley face background. Elon Musk was enamoured with Mr Edwards’ design and tweeted to his 22 million Twitter followers to say “maybe my favourite mug ever”. Mr Edwards was delighted and received a huge increase of interest in his work, however, his happiness was short-lived when Tesla proceeded to use similar images of farting unicorns in marketing and other material for Tesla without his consent and without offering him any financial compensation.
In May 2018 Mr Edwards instructed his lawyer to write to Tesla and did not receive a reply, as such in June he and his daughter took to social media to publicise their allegations that Mr Edwards copyright was being infringed by Tesla and to call Mr Musk out on his behaviour.
It appears that bringing the issue to the public’s attention worked as an approach to get Mr Musk and Tesla to the negotiation table as Mr Edwards has now publically said that he has reached a settlement with Elon Musk and Tesla stating that “We have reached an agreement with Tesla that resolves our issues in a way that everyone feels good about,” he said. “It’s clear there were some misunderstandings that led to this escalating, but I’m just glad that everything has been cleared up.”
Elon Musk then later tweeted a link to Edwards’ blog accompanied by three emojis – a unicorn, a gust of wind and a peace sign.
As we noted previously if this case had occurred in the Uk then in order to prove that his copyright work has been infringed Mr Edwards would have had to prove that his farting unicorn mug design is an artistic copyright work i.e. an original graphic work, and that the similar farting unicorn design used by Mr Musk and Tesla created substantially the same overall impression as Mr Edwards’ copyright work and that therefore Mr Edwards intellectual property rights, specifically, his rights at the owner of the copyright in his farting cartoon unicorn were infringed.
As an agreement has been met between Mr Edwards and Elon Musk/Tesla there was no need to bring formal legal action and the matter has been resolved. Mr Edwards and his supporters were quite canny in leveraging Mr Musk and Tesla by gaining public attention regarding the matter. However, there is a fine line when speaking publically about a dispute to ensure you do not expose yourself to a defamation claim.
Briffa advises on all aspects of copyright law and practice, including contentious (e.g. infringement) and non-contentious (e.g. licensing) matters. Briffa also advises strategically as to the best way to approach a dispute including raising it publically along with the potential implications of doing so such as exposure to a defamation claim. If you have any queries regarding copyright or any other intellectual property rights, please do not hesitate to get in contact with us and we will be happy to assist. We offer free 30-minute consultations to all new clients at our offices in the Business Design Centre in Islington, London.
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