You probably didn’t expect to see “farting unicorn” and “Elon Musk” together in headlines—but a recent copyright argument accomplished the feat.
The headlines were published after Tom Edwards, a potter in Colorado who makes “Wallyware,” accused Musk of using his artwork without permission or attribution.
In 2017, Musk tweeted a photo that has now been deleted that showed an updated Tesla operating system. The system known as the ‘sketch pad’ had a hidden design very identical to Edwards’ unicorn that could be found by pressing the ‘T’ button three times.
Musk tweeted the photo of Tesla’s sketch pad in March 2017. One month prior, Musk tweeted an image of Edward’s mug along with the text: “Rainbows, unicorns and electric cars.” Musk replied to his post with another tweet that read, “Maybe my favorite mug ever.”
The mug features a unicorn releasing gas into a funnel that is connected to an electric car. The back of the mug read, “Electric cars are good for the environment because electricity comes from magic.”
Though Edwards appreciated a jump in mug sales after Musks’ tweets of his pottery, he sought legal advice after seeing his design used in Tesla’s operating system.
The 61-year-old artist was going to let it go until he learned the image was also appearing in Tesla’s operating system as a small icon – and that the company had even used it in a Christmas message.
“It’s part of their branding now,” Edwards said in an interview. “I love the fact that it’s in the cars, but I just want them to do the right thing and pay me adequately for it. Elon Musk can be a hero for standing up for artists’ rights.”
ABC Denver7 reported:
“It’s a David versus Goliath kind of thing,” Edwards said. “He put a software upgrade in the automobiles that featured my design. At first I found it flattering, but then immediately recognized it was copyright infringement. But I didn’t do anything. I mean, how do you fight a company like that? But then I hired a lawyer.”
Fast forward to 14 months later. Edward’s attorney sent Tesla a cease-and-desist letter, which they dubbed an “invitation” to reach a mutually beneficial agreement to use the design.
So on 23 May, Edwards’ lawyer, Tim Atkinson, sent a letter to Tesla’s general counsel, with the subject line: The Power of Magic. The note said it was “not a cease and desist”, but an “invitation for all parties to continue to benefit from the whimsical, and amazingly spot on piece of imagery my client created in 2010, which now appropriately finds a home in the operating system of the magical vehicles your company produces”.
The letter said the image grew out of Edwards’ “admiration” for sustainable technologies and the work of “visionaries like Mr Musk”, adding that the letter was not meant to be a “shakedown” or “outrageous monetary demand”, but was seeking a “discussion” and a “mutual decision”.
Tesla has not yet responded to the letter. The story gained momentum recently after Edwards’ daughter, a Seattle musician whose stage and band name is “Lisa Prank,” tweeted the story and tagged Musk:
— Lisa Prank (@lisaprank) June 26, 2018
Musk responded to Prank with a since-deleted tweet that read:
I think Nik @jovanik21 did an illustration with Tesla sketch pad Easter egg similar to mug pic that I posted. Was chosen randomly by software team as a joke (they didn’t tell me in advance) as an example of the hidden feature. We can change it to something else if your Dad wants.
Prank responded to Musk, accusing Tesla of “using [Edwards’] creative property for a year without credit or compensation,” to which Musk replied, saying he’d asked his team to use a different image going forward.
“Was actually someone else’s drawing of a unicorn on hidden Tesla sketch pad app & we gained no financial benefit,” Musk tweeted. “He can sue for money if he wants, but that’s kinda lame. If anything, this attention increased his mug sales.”
Shortly after the story made headlines in publications includingThe Guardian, Mashable, Business Insider and Newsweek, Musk deleted all of his responses to Prank, along with his tweets of Edwards’ mug and the artwork on Tesla’s sketch pad.
Musk also deleted his tweeted response to The Guardian’s coverage of the story, calling the article “bs in every possible way” and claiming that he offered Edwards twice to pay him for his art. Edwards denied being paid.
Aside from the cease-and-desist, Edwards responded by altering the description of his farting unicorn mug in his online store. It now reads:
This is Elon Musk’s favorite mug! Back in February 2017, he tweeted about it and we received orders from all over the world. A couple of months later, he “borrowed” my design to pitch a new sketch pad software upgrade for the Tesla cars. I got some nice press out of it and sold a bunch more mugs. I joked about how it would be nice if he would pay me for my artwork by giving me a new car, but this has yet to happen.
Edwards also created a bowl that reads, “Don’t be a fart. Don’t steal art” along with additional mugs that depict Musk holding a rope around the unicorn’s neck. Those mugs have the text: “Tesla stole my unicorn.”
For artists and designers, the situation highlights an issue that can quickly surface in today’s digital age. Though there can be protection under the Digital Millennium Copyright Act, creators still have to scour the internet for potential trademark infringement, then file claims and/or lawsuits.
Eugene Beliy, an entertainment and intellectual property attorney based in Seattle, says that in cases of copyright, the rights holders have to enforce their rights. The biggest deterrent to doing that, though, is usually money.
“Musk is saying ‘come sue me’ knowing full well that it’s impractical for the artist to follow through on a full litigation, even if they have a pretty clear-cut case,” said Beliy.
For PR and marketing pros, the situation shows a grey area of image use and branding. To protect your brand, however, use caution. DMCA fines can quickly become costly, and even if an artist won’t take you to court for using an image without permission, your organization can quickly make headlines for all the wrong reasons.
For Musk and Tesla, this copyright spat is a small risk in comparison to recent crises that have dinged the organization’s reputation. Avoiding negative PR in the first place (start with this copyright primer) can more quickly and effectively bolster your image, however—no permission necessary.