Business Law & Compliance

What do you do if a business tycoon steals your farting unicorn?

5 min read

09 July 2018

Former special projects journalist

Artist Tom Edwards and Tesla founder Elon Musk have locked horns over an image of a farting unicorn. What intellectual property lessons can small businesses learn from the dispute?

It’s the age-old problem…you’ve had an amazing idea and you want to get it to market, but how do you make sure nobody copies you?

Say, for example, you are a potter that creates mugs with images of farting unicorns, how do you guarantee your image won’t be reproduced by a global business tycoon? It’s a tale as old as time.

This is in fact the debate that is currently being waged between Tom Edward, an artist from Colorado, and Elon Musk, founder of Tesla.

It started off friendly enough, with Musk simply promoting the mug on Twitter. The mug features a unicorn farting electricity into an electric car.

Here’s what the mug looks like:

The endorsement resulted in increased sales for Edwards, but things went sour shortly after when Musk tweeted an image of a very similar unicorn promoting Tesla’s new sketch pad feature.

Edwards was reportedly prepared to let this slide, until he learned that the image had been used in the business’ operating system as a small icon, and as a Christmas message.

Initially, after being called out by Prank, Musk offered to “change it to something else if your Dad wants”, but later he tweeted:

“Was actually someone else’s drawing of a unicorn on hidden Tesla sketch pad app & we gained no financial benefit. 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.”

This tweet now appears to have been removed.

Matt Jones, partner at intellectual property firm EIP comments: “This is a particularly interesting dispute. What we have here is one party being accused by another of copyright infringement and, apparently, admitting to the actions they are being accused of – but refusing to pay compensation to the creator.

“This is something quite rare in these sorts of cases. Normally, the defendant would try to argue that there are significant differences between the two works, and in any event that there was no copying. In this instance, though, there is no defence being provided, and if anything, Mr Musk is being provocative by claiming it would be “lame” for the artist, Tom Edwards, to sue, and that apparently Mr Edwards should be grateful for the attention. This is a surprising response to a request to settle the dispute amicably.”

For his part, Edwards hopes to settle the matter on good terms, and wanted to speak out because he has heard similar stories from other artists. He says it is about “integrity” and that Musk “isn’t above copyright law”.

However, according to Westword, Edwards had not copyrighted the unicorn when it was first used by Musk. He has been assured that it is protected regardless, and has since got his hands on an official copyright.

While this may be a particularly high profile and in some ways comical dispute, it is a hard-learned lesson for Edwards – and one that other small businesses won’t soon forget.