Janet Fries protects and champions creative expression by artists, filmmakers, authors and others. She seeks to ensure that clients, both individual artists and corporations operating in entertainment and the arts, reap the rights and benefits afforded to them under U.S. and global intellectual property laws through negotiation, mediation and litigation. A trained fine art photographer herself and a leader in the community of lawyers who serve artists, Janet is immersed in the field both personally and professionally.
Non-fungible tokens (“NFTs”) continue to dominate the crypto-zeitgeist. It is beyond dispute that they are currently a major economic and cultural force. In 2021, sales surged to approximately $25 billion. They have been featured in high profile television commercials during the Olympics and the Super Bowl. And Nike recently purchased the NFT developer RTFKT Studios, signaling its intention to be a dominant provider of digital fashion in the metaverse.
Despite all this, it remains unclear what legal rights are conveyed with the purchase of an NFT. The academic consensus is that, absent a “smart contract” that expressly includes intellectual property (“IP”) rights, purchasing an NFT does not convey any copyrights or trademark rights. Yet, the creation of an NFT (called “minting”) is almost certainly limited by recognized IP and other legal principles. These issues have begun to percolate up through the courts.
This article explores lingering, undefined NFT questions through the lens of several pending lawsuits. While many articles just describe the facts of each case, this article focuses on the most interesting legal arguments that each makes. It also identifies how decisions by these courts may form the basis of property rights within the metaverse. And ultimately, it questions whether the emergence of such lawsuits undermines blockchain as a decentralized institution.
Ever since the artist known as Beeple1 sold an NFT of a digital collage for over $69 million at Christie’s mid-March 2021 auction, everyone in the art world — and in other communities — has been talking about NFTs. Depending on whom you listen to, NFTs are the future of art and will bring long-hoped-for transparency and accountability to the art market. Or they are a dangerous fad. Or they are “nothing sandwiches” that provide something to purchase with cryptocurrency that otherwise just sits unused in digital wallets.
So what the heck is an NFT? NFT is short for “nonfungible token”; an NFT has been defined as a digital certificate of ownership or a digital record of a transaction. The record is “minted”, i.e. created, using blockchain technology that is stored over a decentralized computer network rather than in a centralized registry. And NFTs are purchased using cryptocurrency, most often Ethereum.
When the Digital Millennium Copyright Act of 1998 (the “DMCA”) was enacted, the stated goal was to bring federal copyright law into the 21st century by providing certain immunities to internet service providers while preserving and even streamlining the ability of copyright holders to enforce their rights.
In the years immediately following the passage of the DMCA, things seemed to work smoothly. In particular, the notice-and-takedown procedure set forth in Section 512, which allows copyright owners to send written notices to parties who have allegedly used copyrighted content without authorization and which requires the recipients of such notices to promptly remove the content, was a useful tool that enabled parties to reach quick resolution of copyright disputes while avoiding costly litigation.
While most of our posts relate to trademark matters, brand owners should also be aware of some common misconceptions about copyright law, which we debunk in the following article. This post is based on the authors’ article “Debunking Copyright Myths,” originally published in Landslide® magazine, Vol. 11, No. 6, July/August 2019, by the American Bar Association.
These days it seems that copyright law is everywhere, from lawsuits alleging that the multiplayer online battle game Fortnite infringed popular dance moves such as the floss,1 to the Ninth Circuit agreeing that Pharrell Williams and Robin Thicke’s song “Blurred Lines” infringed Marvin Gaye’s copyrighted hit song “Got to Give It Up.”2 As the Internet and technology have become omnipresent in our lives, the constant availability of copyrighted content—from streamed music to photos and posts on social media—has led to the perpetuation of copyright myths. Unfortunately, these myths and numerous others have caused misconceptions over the rights of the copyright holder and the obligations of the user.
If you have a brand, chances are you have a website. And if you have a website, chances are you have content on the website – probably some combination of text, music, photos, and graphics, including a logo that may be registered with both the USPTO and the Copyright Office. You’re probably taking steps to help ensure that infringing content isn’t posted to your website –right? In case you hadn’t heard of it, here’s an additional nifty, inexpensive way for you to help minimize liability even further: compliance with the Digital Millennium Copyright Act (DMCA). Continue reading →
Brand owners may be able to use copyright law, in addition to trademark law, to better protect their brands. “Hey, wait a minute,” you say. “I thought this was a trademark blog!” Well, it’s our job to make sure every aspect of our clients’ brands is protected in the best way possible—even if that means venturing into the world of copyright law (and patent law . . . but that’s for another post).
Copyright law protects original works, such as writings, pictures and works of art, which have been expressed in a tangible way. Trademark law, on the other hand, protects words, phrases, symbols and designs that identify and distinguish the source of products and services.
Privacy & Cookies Policy
Necessary cookies are absolutely essential for the website to function properly. This category only includes cookies that ensures basic functionalities and security features of the website. These cookies do not store any personal information.
Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.