Elon Musk has an almost Trumpian ability to court controversy. This time he’s dug in with an artist in the Colorado mountains and one of his prized creations: a unicorn who uses his magic to power an electric car.
Tom Edwards has been a potter for 40 years, handcrafting whimsical mugs, plates and bowls from his studio about 30 miles west of Denver. It was there in 2010 when Edwards unveiled a new mug. There’s a rainbow, yellow smiley faces and a joke, etched in capital letters:
Electric cars are good for the environment because electricity comes from magic!
And there’s, well, a car powered by gas coming from the unicorn’s . . . behind.
Edwards, 61, thinks the joke is pretty funny.
Elon Musk, the provocateur and founder of electronic carmaker Tesla, thought so too. He tweeted in February 2017 that the tooting unicorn was “maybe my favorite mug ever.”
“I’ve been doing this pottery gig forever,” Edwards said, “and that was really a moment in my life, when the coolest guy on the planet tweets your mug and you get a bunch of sales out of it.”
About 50 orders for the unicorn mug streamed in after Musk’s tweet — a sizable uptick given the 300 to 400 unicorn mugs Edwards has made in total.
In March, Musk touted the unicorn again, this time using the image as part of the rollout of the sketch pad feature on new Tesla models. Musk tweeted, “Made today on Tesla sketch pad” with a nearly identical image of the unicorn alongside a sketch of the Mona Lisa.
More orders for the unicorn mug rolled in, suggesting to Edwards that “Elon Musk must have done something again,” he said. This time, though, it was used to promote Tesla’s brand.
“It’s got the exact same gesture of the lines, the happy faces, the colors — everything,” Edwards said, “which makes my situation a slam-dunk copyright infringement issue.”
Edwards paused. He wasn’t itching to mount a lawsuit. He could ride the bump in sales. He’d have a good story to tell at parties.
Still, when a likeness is used in a commercial way, its creator typically has the right to claim compensation.
His friends pushed him to collect his money. And then came Christmas, when Tesla sent its customers a greeting card decked out with a tooting unicorn.
And so, in the spirit of New Year’s resolutions, Edwards decided to do something.
Edwards, now represented by attorney Timothy Atkinson, is seeking compensation for Tesla’s use of the image. And he’s hoping that if Musk “just does the right thing,” it will signal broader support for artists’ rights and the protection of their work.
“I don’t want to be that guy in a suit in court,” Edwards said, “and my impression of Elon Musk is that he doesn’t like to do it that way either.”
Last month, Atkinson wrote a letter to Tesla’s general counsel asking the company to compensate Edwards. He didn’t threaten legal action or even demand a specific amount, but instead hoped to initiate a discussion. Before Atkinson sent the letter, Edwards registered the image with the U.S. Copyright Office.
But the path to compensation may require more than magic.
Jane Ginsburg, a professor of literary and artistic property law at Columbia Law School, said artists defending their ownership of an image often “don’t have an easy time of it,” especially if they didn’t register their work with the copyright office before that work was misused. In those cases, artists who go to court may be eligible for significantly less money in damages, such as what they can prove in lost sales or the price of licensing their image. Those damages typically wouldn’t cover the cost of the lawsuit, Ginsburg said.
“That’s why many artists, unless they systematically register their work as soon as they publish it, really are not in a position to enforce their rights,” Ginsburg said.
Atkinson hasn’t heard back from Tesla. The company did not respond to a request for comment for this article.
Musk may have hinted at his point of view through his Twitter account, which seems to have been scrapped of all mentions of the unicorn.
On Tuesday, Edwards’ daughter Robin (who is known professionally as Lisa Prank) tweeted at Musk saying, “what do you have to say for yourself?”
In a tweet that has since been deleted but was reported in multiple outlets, Musk responded: “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.”
That logic doesn’t square for Atkinson. He compared Musk’s take to if a company went on Twitter to praise Bruce Springsteen’s “Born in the U.S.A.” and then used it in a commercial without payment.
To say “‘I didn’t need to pay him for that because I had already given him a shout out’ — that to me is the fallacy in the argument there,” Atkinson said.
Atkinson and Edwards both said they haven’t ruled out a formal lawsuit against Tesla, depending on how the company responds.
At this point, the saga was enough to engage Harry Potter author J.K. Rowling, who called the unicorn battle “the spin-off you never knew you wanted.”
Edwards, who called himself a guy “who just sits in a garage to make pots,” chose a more biblical reference.
“I’m just this nobody artist,” he said. “And to me it’s just like, if there ever was a David and Goliath, that’s this to me.”