Unicorn farts don’t power Tesla cars, but they have led to a dispute in which an artist claims Tesla CEO Elon Musk and his firm have used a rendition of his artwork without permission—or compensation.
Artist Tom Edwards claims Musk and Tesla have made unauthorized use of a likeness of a drawing of a car powered by a farting unicorn he made for a ceramic mug that he designed in 2010 and has sold steadily since. A roughly drawn copy appeared in an image posted by Musk on March 29, 2017, and later was embedded into an “Easter egg,” or hidden feature, in the Tesla automotive operating system and used as a small image in a 2017 Christmas card from Musk delivered to Tesla owners through the in-car interface.
Musk has deflected the claim, telling the artist’s daughter via Twitter that her father was paid in exposure for the farting unicorn image. But the artist wants actual money.
Edwards told Westword, his local paper in Denver, that he admires Musk, but he wants payment for this use. According that interview, and reporting in the Guardian, Edwards hired an attorney, who sent a letter to Tesla’s general counsel on May 23. He has received no reply so far, though Musk has now tweeted about the issue.
Edwards has created pottery for 40 years, using a faux naive cartooning style he calls “Wally” with great success since 1983. His mug shows a unicorn farting into an intake funnel for a car. The reverse side reads, “Electric cars are good for the environment because electricity comes from magic!”
While the drawing was attributed to Musk in media reports after he posted it, Musk credited it today to Nik Jovanovic, a Twitter user who used the Tesla car’s sketch pad app—itself an Easter egg—to make a redrawing of the mug’s design.
Fortune has asked Tesla and Jovanovic for comment.
At some point, Jovanovic sent his version to Musk, as he responded to Musk on March 29. Jovanovic thanked Musk on May 7, 2017, for incorporating his drawing as an Easter egg into the Tesla system. Musk mentioned Jovanovic, whose Twitter biography says, “Twitter is great to keep up with my hero…@elonmusk,” in a contentious exchange with Edwards’s daughter Robin Edwards, who performs music under the name Lisa Prank.
Musk deflected Robin Edwards by saying that the drawing was someone else’s work and “we gained no financial benefit.” He told her, “He can sue for money if he wants, but that’s kinda lame. If anything, this attention increased his mug sales.”
Edwards told Westword that Musk’s tweet of his mug resulted in about 100 sales.
Under the international Berne Convention, to which the U.S. is a signatory, the act of creating a work imbues it with copyright. Derivative work that has recognizable attributes, even a re-drawing such as this, typically only establishes a separate basis in copyright if it has undergone a transformative effect.
While U.S. fair-use doctrine allows use of work under copyright without a license or permission, the sole test isn’t whether the party using it offers it for sale. A four-part test commonly employed also examines whether the copyright holder has had the potential market for his or her work reduced.
Registering a copyright provides for triple damages in an infringement suit and can better establish the date a work was created or published, but it hasn’t been required to create a copyright for decades.
