The actual object depicted in the drawing? Not subject to the same copyright; in fact it can't be copyrighted (in the way Mr Unger thinks it can; as was mentioned, if you own the copyright to the Mona Lisa, no-one can put the Mona Lisa on a firepit, but a few waves of simulated fire are not original enough).

It's possible Mr Unger is either misinformed himself or had very, very bad advice. There is in place a means to protect his firepit designs, but he didn't avail himself of that; he though a copyright would do. As we've said, a copyright doesn't apply to his firepits.

He should have applied for and received a registered industrial design. You know, the R in a circle, not the C in a circle. Had he done that, he would have a right to prevent others from copying his design.

Registered designs are the things that keep people from selling exact copies of Ferraris, or Movado watches, or iPods. They are like a trademark, except a trademark is just a mark on an object (piece of paper, fabric on a coat, badge on a car, etc); a Registered Design covers an object itself and how it, basically, looks.

Next on the list would be patents, which cover how things work. A patent for a firepit probably would not be granted; it's been done before and besides, it's "obvious", which is grounds to reject a patent.

Copyright? He hasn't a chance. Registered Design? He would be walking away with money. Patent? Not applicable.

He screwed up, and failed to protect his design with the methods available to him. Anyone can take them and run with it.

What is the name of portion of gut that immediately follows the duodenum?

Finally, for 100 points, at what point does food become classified as "bolus"?

The answer to this is actually pretty clear: You buy from the cheaper guy.

If he's improperly ripping off the original artist, the original artist will prevail on his copyright infringement claim, and the infringer will have to pay the original artist damages.

If he's not improperly ripping off the original artist, there's no reason not to buy from him.

Either way, you save money.

So Wittrig doesn't believe the firepits are artistic, yet he sells them on a website with the word "ART" in it's name. Sounds like Wittrig needs to change his website to www.FirePitUtilities.com

But filing (actually, registering) a copyright doesn't mean that one has a more valid copyright. Copyright attaches the moment the work is "fixed in a tangible medium of expression." *IF* Unger's work is copyrightable subject matter, his copyright attached at the completion of the work, NOT when he registered. Registration is not required for copyright protection now (so Unger didn't even have to register for him to assert his rights).

The whole argument that Whittrig is making is that no copyright attached to the Unger's work b/c the fire pits are not copyrightable subject matter.

He's probably wrong, but this case does not hinge on the registration.

@Persistence:Enjoy your paper. I've been working on the topic for 8-9 years now, and I'm still floored by some of the claims (I'm even writing a book on it, detailing some of the more ludicrous claims made over the last 10 years, including some cases I've been part of - if you want any help, drop me an email)

Thanks Pillow Talk, you are so right!

You would not believe what it costs for John to run his business (I'm his girlfriend, btw.) What money he gets to keep as profit is very, very small compared to what comes in. Employees, supplies (not just the propane tanks, but all the various stuff for the plasma cutter, etc), shipping, and ten million other little things that you would never consider.

We live very modestly in what basically amounts to a shack in a rural area of Northern Michigan-one of the most economically depressed states in the nation. Several people depend on John for part or all of their income in an area where there just aren't jobs to be had.

He rarely takes a day off, ever. I get him to take HALF a day off every few weeks. His business is a 24/7 operation, but he loves every minute of it. He does this for his love of art, not money, but we have to eat too.

Basically, to expand - the fact that mass-marketed items can be priced so much lower and more competitively seems to remove us a lot from understanding exactly how much stuff like this costs to produce, and a lot of people get entitled. They're so used to seeing things cheaper, so they think that something like this, hand-produced but priced higher, MUST be over-priced. The reality is that price of goods right now is actually obscenely low and is damaging the world economy - items SHOULD NOT be priced as low as they are at Wal-Mart or places of the like. But people always want cheaper cheaper cheaper, this is overpriced omg, I can get it so much cheaper at _______, so big companies strong-arm the producers into producing for cheaper, skilled labor is fired and work is outsourced to people you can pay a penny an hour.

The expectation that things should be priced lower, lower, lower to be competitive at all times is ultimately damaging.

Exactly. How do you know how much time it costs him to make this? How much money he might have to invest in the upkeep of his metal working materials? How much he has to pay for rent ton his studio space? How much he has to pay to maintain his business and advertising? I keep saying this to people, but I've known a lot of artists who make hand-made stuff, and on average (after the price of mats and maintaining all the other costs of their business) they make about $8-10 an hour. If they want to make ANY sort of return on the amount of time invested, they have to price things fairly expensively. I hate this attitude you're showing, because so many people tell them their art is over-priced without even realizing that if they price it lower they might as well just go out of business, because making below minimum wage as a profit is not going to cut it.

HA HA HA HA Great comment.

Just don't put an energy drink in that firepit.

So if you acknowledge that the original reason for copyright was to compensate the author, as writing took a lot of time and energy - why would you not recognize that this can also apply to the artist? These things probably take a lot of time to make, not to mention the cost of materials (and especially the cost of all the metal working tools and maintaining a metal working studio, he could even have to pay rent on his studio space). Your average artist ends up paying himself $8-10 an hour (after mats) on the time spent on their projects, by eliminating his copyright and forcing him to price down, we'd most likely be forcing him to price his products lower and thus pay himself below minimum wage.

So why is protecting writers ok, but not artists? Artists deserve to be fairly comepnsated as much as authors. Just because it 'seems' like this is expensive? A lot of people don't fully understand how long stuff like this takes.

Also yes, it soudns like you're confusing copyright and patent.

What? "He knows he needs to lower his prices"?

Look, something a lot of people don't understand about hand-made art is that it costs what it does because the artist needs to make some sort of return on the amount of time and energy spent (as well as cost of materials - I imagine maintaining welding and metal-working tools and a workshop space is not cheap). A lot of times artists are just barely squeaking by, pricing their products so that they make $8-10 an hour from the time they spent on it.

Things like this are time consuming, that's why they cost so much. Copycats who can mass produce this sort of thing force artists to price their art lower so that they make below minimum wage on the time invested, which eventually forces them to stop and to have to find some other job or way to supplement their income. That's why he's trying to protect his designs - he doesn't mind having a competitor in the same market, but having someone making the exact same designs effectively robs him of his income.

I mean seriously people, these things aren't expensive because of vanity. It really burns my ass when people don't understand this and think artists are just trying to rip them off, or that artists make tons of money on this stuff - that's not true at all.

@parad0x360: What, exactly, are your credentials for asserting that "the other guy is within his right to copy them?" If the copyright is legitimate, and I'd love to know why you think it isn't, then he is absolutely NOT allowed to copy them.

Okay, that is it, I am starting a new company:

Monster Firepits

I'm gonna buy it from whoever sells it cheaper. If one sells it for less, so be it.

...Guess that settles the "buy the original" or "buy the knockoff" in my mind.

To say nothing of rewarding originality over theft.

Unless he is going to sue people who make candle holders, dinner plates, or trays in general, as there are plenty triangular shape plates like the last.

And flames on a fire pit? Anyone that has ever done old school hotrod flames would have a case against him then.

His designs are not original. He should suck it up and design something of his own, or start undercutting the other guy. Otherwise, if the "copy-cat" really wants to get nasty, he can look up prior art, and prior copyright holders for the same design in different categories, and sic them on the original for falsly filing a copyright.

As for the second pair of images, can you really copyright a common geometric shape such as a spiral? If so, I call dibs on rectangles.

The third set is just a triangle shape... however, you could convince me that curving the triangle upward into that particular bowl form is a unique copyright-able concept.

it reminds me a little of two toddlers - one has a favorite toy in the whole world and the other one sees it and fusses until some well meaning adult gives it to him to make him quiet. 5 minutes later, after coloring in the eyes, chewing on the extremities and dipping it in milk, the second toddler throws the toy on the floor, leaving the one whose favorite it was heartbroken.

Design knockoffs are not a new or even remotely uncommon problem. Any design that's successful will have to deal with knockoffs. But for some reason, I only recall hearing about lawsuits in recent memory when Apple sues companies that make (iMac|iPod|iPhone) knockoffs. I'd imagine other original designs are vigorously defended as well, but just not reported as widely.

There is an area of overlap between copyright and design patent statutes where the author/inventor can secure both a copyright and a design patent. Thus an ornamental design may be copyrighted as a work of art and may also be subject matter of a design patent. The author/inventor may not be required to elect between securing a copyright or a design patent. [www.uspto.gov]

A legal precedent was set a long time ago when Philips sued Remington for copying its 3 blade razor head. Remington argued (similarly to firepit jerk/copier above) that it was a "utilitarian solution" and therefore not covered by copyright. An industrial designer was hired as an expert witness and he basically put the kibosh to that argument, stating that a 3 blade head was NOT the only solution to the problem (where 2, 4 or 5 heads could also suffice) and that the arrangement of the heads was a unique solution that Philips had every right to protect. Philips won that court battle as a result. I would side with the original artist on this one unless it was proven that his designs are not completely original (I've seen candlestick holders that look extremely familiar).

You don't follow Microsoft Research much, do you?

I think I know the answer. He wants to profit from someone else's talent. The hell with ethics. End of story.

Anywho. I'm with Unger; I think it is OUTRAGEOUS that Wittrig stole his designs and is acting self-righteous about it. What an ass. Seriously. And you can quote me on that.

RELATED: If you don't have a lot of property around your house, *please* consider the effects of a firepit on your immediate neighbors. My son and I suffered chest-rattling asthma attacks every time the neighbor in back of us fired his up. And everything in our house reeked of smoke for days afterwards. We finally persuaded him to stop. Common sense, peeps!

Synchronicity with the Consumerist is your destiny, Luke.

That said, since Unger has filed copyright all the way through (YAY!), I don't see where a judge would have any issue saying "Uh, Unger completed all the paperwork and registered it. Wittrig hasn't, and there is ART involved (as previously pointed out, even Wittrig calls it art), copyright goes to Unger."
Fight it, John. Fight it with everything you have.

@Radi0logy: My duodenum thinks LostAtoll is taking this thread to seriously and is in need of a hug.

Not necessarily. Just because advertising copy indicates as such doesn't make it a conclusive finding that has been reached upon review under the appropriate legal standards. Certainly those statements may have some persuasive value (discrediting Wittrig is probably the most they'll get out of it), but it won't be case-dispositive.

With regard to the patent issue - it's important to keep in mind there are three types of patents: a utility patent, which we normally associate with the term "patent" in which claims are directed to the utilitarian features of a device; a design patent, which is directed to the aesthetic/design elements or features of a utilitarian object; and a plant patent. A design patent would have squarely covered the appearance and the aesthetic features (e.g., swirls on the rim) of the fire pit, and under the current standard for design patent infringement, I think the Wittrig design would be found infringing, subject to, of course, what's in the prior art. If that object embodying all of the aspects of any prospective patent has been in the marketplace for longer than a year, it is part of the public domain. Given the time line, it's likely that is the case.

With regard to "originality," it's important to remember that the threshold is extremely low - even re-arranging phone book listings in a certain way have been found to meet the requirement. I think there is sufficient originality in Unger's design.

The fact still remains that they're made out of the ass-end of scrap propane tanks with maybe a little filigree cut out and a lot of art school "artisanal" nonsense thrown in to sell them.

Ov-er-priced.

It's a better product because art went into it and not just production for profit.

Though I did appreciate that it gave Chris a chance to say "edited my way over.. and edited a look."

The little things. They entertain me.

You hit the nail on the head I think. Artist can legally continue to make his pits without fear of legal action, so the best he can do is get out in front of competition by continually innovating and improving his product.

@Ubik2501: That's what (perhaps, sadly) popped into my mind after I was done with reading this article. Wittrig is a dick.

Although, it did leave room for some funny moments. I lol'ed as Chris "edited" his way over to the website and such.

ButWittrig's own website has the word art in it, which means he is selling it as art, rather than a utilitarian object? Is he stoned???

I think the basis of Whittrig's argument is that the pits don't enjoy copyright protection because they are not copyrightable subject. It's not clear from the article, but it sounds like Whittrig is looking for declarative judgment about that. He also wants payment for the hassle he's been through if it turns out that he's right.

In my opinion, his view of "useful objects" is a bit overbroad when one considers that the design aspect can be separated out (and copyrighted) from the utilitarian aspect (the realm of patent). Unger registered the works as "sculptural" and that's all that copyright can protect (the sculptural elements).

Whittrig, though, doesn't have to frame this as a patent issue. I'm going to assume that nobody owns a patent on steel fire pits, anyway, and that there's no ability to patent a fire pit any more (unless there's something added to it that's not obvious). It's pretty clear, though, that the issue is in regards to the overall artistic design of the objects, not the fact that they can be used for fire. So, I don't see any reason for anybody to "assert a patent."

On the other hand, it doesn't seem that the design aspect of the fire pits is particularly "original" either. The artistic aspect might not be copyrightable for that reason.

Maybe Unger should assert a trade dress claim. It's probably the most applicable IP protection here.

Not that I'm buying a fire-ring-thing anytime soon.

So the guy whose argument is "it's not art" has the website firepitart.com? Shouldn't he quickly change it to firepit.com?

The 3rd design, though, looks exactly the same. I have a feeling the judge will side on the 3rd design being infringement but will let the other ones through.

@billy: Sorry, I was being more of a smartass than anything. I get what's going on here. I'm all for the artist.

Seriously...it's about as artistic as an elephant taking a dump on canvas (which is subsequently sold to Steve Wynn so he put his shoulder through it).

The sole legal purpose of copyright is to allow compensation for research and development; they are categorically NOT intended (legally or historically) to allow an individual to maintain monopolist pricing. If research costs are minimal (as they appear to be here), then it is in the public's interest to not enforce a copyright claim.

The original purpose of copyright was to ensure that an author would be compensated. In the case of a book, the cost of writing the content greatly outweighs the cost of manufacture. A copyright prevents another publisher from reprinting content without compensating the author, which removes the incentive for authorship (something contrary to the public interest).

The issue here is whether the 1st work gets any copyright protection in light of the fact that it may be considered a useful object.

Musical works are not considered useful objects.

@Radi0logy: This sums up why I don't sell my harnesses.

Doesn't this happen in the music industry all the time?

At the very least it's better when they purchase someone elses idea and recognize the creator instead of stealing it outright, but I digress.

A copyright covers "works of authorship," which essentially means literary, dramatic, and musical works, pictorial, graphic, and sculptural works, audio-visual works, sound recordings, pantomimes and choreography. A patent covers an invention, which essentially means a new and non-obvious useful and functional feature of a product or process.

There are several patented items that in hindsight seem obvious to many, but (at least at the time) that didn't lessen the validity of said object.

I'm just sayin'.

Mr. Wittrig you are a disgrace, not only because you copied someone else's idea, but now you're fighting to prove that his obviously creative product shouldn't be allowed copyright protection. Are you serious? Take a look in the mirror sometime, and ask yourself if this is who you want to be. Because the internet is now looking, and what they see is ugly.

@billy: Also completely right.

John and I would ask again that people be ethical and truthful and not to use derogatory language, please see our update for ways you can help. [www.johntunger.com]

The thing that seriously bothers me most is that a fan of Unger's work encountered Wittrig, and thinking he was Unger as the work is so similar, engaged in conversation with Wittrig. She then sent an email to Unger after she realised what had happened.

I met this guy at a local festival this weekend and his work was so similar to yours I went over and introduced myself. Something was not right, but I was not sure that it was not you until I came back and checked your site... I was excited to meet (you) in person and he was aloof...? I am aggravated now knowing that he allowed me to go on and never said that I must be mistaking him for someone else.

I think Wittrig knew exactly what was going on and didn't clue the gal in because he knew he was ripping Unger off. I personally hope Wittrig loses the suit and has to pay exorbitant damages to Unger as a result. Oh, and that he also get chronic, incurable jock itch.

Wittrig is a thieving douchebag. I am famously frugal and I'd buy from the originator - IF I had that kind of money to BURN.

And from a non-douchey standpoint, I imagine he's superior as well. If that's how Wittrig responds when invited to tell his side of the story, imagine having to deal with him if you got a busted fire pit or something from him.

@secret_curse:

This is what a consumerist article should be. You get a story, you reach out to the other side, and do some background work. you don't just copy and paste someone's email about how they're being screwed over. Good job Chris - let's see some more of these.

As a judge, I wouldn't see any other way than to rule for the original artist. Without a doubt, Wittrig saw a easy opportunity to profit from someone else's hard work. I have no sympathy for that, nor do I have any respect for theives.
I am fairly certain that if this were a large corporate mass produced product, Wittrig would never DREAM of trying this, but he figures he has nothing to lose with a small business owner like Unger.

Hands down, ever with a fairly substancial price difference I wouldn't buy from Wittrig. Besides, if he's willing to steal designs, what makes anyone think he wouldn't skimp on material qualities and sell cheap junk?

@dorianh49: They call me, Jack

@kaceetheconsumer: Nobody else to pick on I guess.

Therefore I was legally screwed, as the 12 month window to dispute was closed.
I did notice that the company had a patent application for my design on file, so the only thing I could do was send evidence of "prior art" to that company and the us patent office, effectively shutting down any patent.

Because I did not file provisional patent and exert the needed diligence to protect it, they won. They probably could care less about the actual patent as they got their stuff mass marketed and sold quickly enough to make big money without it.

Lesson learned on my part. My personal revenge is that because my design is now unprotected and "public domain", I make a point of posting the pattern for free to any diy site I can find, in hopes that a few " little guys" can cut into their business.

I get offers all the time from people who expect Walmart prices at slave labour wages.

While I think it takes "big ones" to sue someone you copied from to release their copyrights, I can almost see the legal angle here for both sides.

Personally, one would think there are enough ways to design a fire pit so you would not need to copy someone else's work. However, a consumer who doesn't know this story will probably buy the copy/cheaper item.

If I had the money I would definitely buy from John, looking through both sites it just seems like he actually loves what he does and isn't in it just for the money. Not too mention, his just look better. I don't know what it is, maybe better craftsmanship, better materials, methods, or whatever they just look better. The lines on the "Wave" pit towards the front of the picture on the home page look jagged and not very smooth at all.

Sorry Rick, I know you're just trying to earn a living just like John is but karma has to stand for something right?

Yeah. THAT'S why.

There are a million ways one could knit a caterpillar, so why did a major yarn brand put up a pattern that almost stitch-for-stitch duplicates my popular and free caterpillar pattern? They employ "designers", so why not design their own? Because, as I've had other real designers tell me, it's cheaper for them to pay a hack who will rip off someone else than to pay someone who has an actual reputation for originality.

And the public doesn't care because most won't know about the rip-off and will buy the cheaper version. In my case both patterns are free, but the yarn company is using it to sell yarn.

@Luckwouldhaveit:
damn straight, pal.

@DrMorison: If you know it's spelled incorrectly, why not spell it correctly?

This also sums up why I do not sell any of my crafts.

@The Porkchop Express: Long ago, in a distant land...

@Spellchk: I was wondering how far down the comments I'd have to scroll to see, 'I build my own firepits at HOME'

@PTB315: And it's very possible the company's lawyer specifically told Wittrig not to comment to anyone about the case, hence his "the info is out there, find it yourself" attitude. Kudos to Chris for actually looking up the relevant information and presenting both sides of the issue.

@cabjf: I'm not saying he can't be upset, just that the flame idea itself seems to obvious for this application.

I know the flames can all be different, but how different do they have to be before there is no "ripping off". I don't work with metal or anything like it, but I would imagine that there is a limit to the shapes you could make (at least make well).

So I guess you should buy from the copycat.

If Wittig is right, then the knockoffs of Louis Vuitton, Gucci, and even the pirate copies of Microsoft Windows 7 should be completely legitimate. Sorry, but I think he's a snake and I wouldn't buy from him.

However, it's a tough topic. The price tags of both suggest a certain amount of artistic flair/creativity is required to create them, therefore the argument that they are utilitarian seems to be off the mark.

I think Wittrig would have a more compelling argument if his prices were like $180.

On a more serious note, (though not by much), you should totally check out yesterday's daily show segment on "voting with your wallet". It nicely rips into liberals who boycotted WholeFoods and the conservatives who rushed to it.

Gist of it all: Everyone is a hypocrite. Just that most people try to keep it to a level they are comfortable with.

@DeeJayQueue: But then can't Wittrig just change the name he uses to describe his fire pits?

That way, if the courts decide that the original artist has a valid claim, he has proof to base his claim for damages on. If the original artist loses, he knows he needs to lower his prices.

The copy-cat artist has a right to counter-sue so that he can get this issue behind him and (assuming he is right/wins the suit) get the original artist to stop harassing/bad-mouthing him.

I'm not criticizing this blog for doing so, but if Consumerist came to me asking questions about something that was an entangled and emotional subject, I'd probably be a bit weary. The Consumerist is a blog that often assigns blame to businesses for failing consumers, or at least calls them out for not meeting peoples expectations of what a business should do for a customer.

Look at the Chris Farley/Direct TV ad post. That wasn't simple statement of fact, the author straight up said Farley's family was making a cash grab instead of honoring him. It's not a factual, verifiable statement either way, its opinion on taste.

However the other guy is within his right to copy them. If a customer is after quality and visually pleasing designs then they will obviously go with the originals, if they just want to save money and have a somewhat decent looking design they will go cheap.

Either way Id never buy one, if I want a fire pit ill make one the old fashion way =)

In other words, if Wittrig is right and the fire pits can't be copyrighted because they are "useful objects," then the registration isn't worth anything because the objects aren't really copyrightable subject matter in the first place.

By the same token (and I think this is what you are getting at) if it's not considered an "original" work by a court, Wittrig can copy all he wants (assuming there is no other copyright holder for that art).

But if Unger is right and the fire pits rise to the level of "original works of authorship fixed in a tangible medium of expression" then the registration demonstrates when the object was created and allows for enhanced statutory damages.

@Spellchk: Get ya to your local scrap metal yard and find some pressure vessels then add an Oxy-acetylene cutting setup and away you go. But don't rip off Unger...

Or Microsoft, if they can't buy your work outright.

You can copyright a soda bottle (again, think Coca-Cola), why not a firepit?

I saw the website of Unger a short while ago and while these are cool, the second thing that thing which crossed my mind:

"How soon until Walmart has a Chinese factory knocking these out copyright or artist be damned?"

(The first thing to cross my mind: was that he is getting $129 for a scrap propane tank bottom. Good for him- wish I had thought of it first."

@pecan 3.14159265: Well, yeah I guess a lot of them would be big bowls like a little webber charcoal hibachi. But I still don't know that these ideas would have never been done before either the artist or the company. If I weren't a lazy bastard today, I would do some looking into it. but alas I am too lazy and tired today.

@cranke: Not to mention that when asked about it, Wittrig basically made nothing but personal attacks on Unger and Consumerist. At the very least, that's unprofessional and uncalled for. It's also a big fat warning sign that, if you have problems with their product after purchasing it, the company will probably treat you about as well as they treat the guy they're ripping off. It's a big signifier of their business ethics, and those ethics apply to the consumer as much as anybody else the business deals with.

Even if Wittrig hasn't infringed on copyrights, I wouldn't buy from him after seeing his snarky response. I'd either save up for the nice one from Unger or not buy one.

@The Porkchop Express: You'd be surprised. A lot of the fire pits you find at Home Depot or Lowes are really just big bowls. No creativity.

The first fire pit, I could believe wasn't exactly a direct ripoff - more like the slightly different off brand. But the next two are pretty dead even, so it makes me wonder.

As John has noted, if Wittrig spent the same amount of time, energy and money creating original designs, there'd be plenty of room in the universe for both of them to be successful.

This kind of copycat behavior is becoming increasingly prevalent. It's kind of sad, really. Reminds me of the episode of the Simpsons where the owner of Itchy & Scratchy tries to defend against the infringement case against him by saying, "If you take away people's ability to steal ideas, where are they going to come from?"

Weird to see the whole thing pop up on Consumerist.

@Shoemaster: And as I said above, the flame is an obvious design for this type of thing at that.

@Spellchk: forgot about the deck part of this.

Seriously, how hard would it be to come up with your own design?

@The Porkchop Express: Ya but that might ruin my deck. Would be cheaper though.

@Spellchk: or you could just dig a hole and put rocks around it.

I gotta say I'm rooting for the company a bit, even though they were dicks to the blog.

To be honest, none of them look "original" they look like what I would assume a decorative fire pit to look like. I mean the one with the flame design....of course the fire pit would have a flame design.

Of course that doesn't mean that they aren't copying him.

They also look like something out of Samuari Jack.

My heart says buy from the artist. My gut say buy from the copycat. My brain however tells me I can just make one of these myself.

I really don't have much to offer as I think the lawyer Chris talked to pretty much summed it up, but I wanted to say this is all very fascinating stuff to me and part of the reason I'm making a mid-life career change to be an IP lawyer.