‘Wave of litigation’ to hit NFT space as copyright issues abound

As the NFT industry grows with increasing market penetration, research and consumer education are key to the domain’s evolution.

Ownership is one of the most critical aspects of nonfungible tokens (NFT). They are a representation of the evolution of execution and ownership of art, content, music, in-game assets, etc., since they are digital assets with distinctive identities that are verifiable on a blockchain network.

However, they have also created a new dimension of discussion about the interaction and grey area around copyright, intellectual property (IP) and trademark laws.

In a recent highly publicized fiasco in the cryptoverse, crypto decentralized autonomous organization (DAO) Spice DAO was mocked for believing that the ownership of a copy of the unpublished manuscript of the film Dune granted them its copyrights as well. The DAO intended to produce an “original animated series” inspired by the book to be sold to a streaming service for which it would require copyrights. The book was won at a Christie’s auction in November last year for over $3 million.

In this case, copyright laws dictate that the copyright is valid throughout the lifetime of the creators and even 70 years after their death which entails that the DAO cannot make the animated series without the permission of the living co-creator, Alejandro Jodorowsky. Cointelegraph discussed this incident with Andrew Rossow, a technology attorney and Ohio law professor, who said:

“The Spice DAO and Dune fiasco was a landmark in its own right that sends a very powerful message to everyone involved in the NFT space — creator or owner. The $3-million mistake that was made proved that intellectual property’s dominion in digital fine art is essential to its success and longevity.”

While it might not be a secret that the ownership of an NFT doesn’t necessarily mean that the underlying copyright of the work has been transferred to the owner, it doesn’t seem evident to all market participants. Rossow explained that copyright law affords six “bundles of rights” or exclusive rights to a creator, which collectively establish their copyright. The first four rights are crucial to NFTs right now — the right to reproduce the work, the right to create derivative works, the distribution right, and the public performance rights.

Marie Tatibouet, chief marketing officer of cryptocurrency exchange Gate.io, spoke with Cointelegraph about the Dune fiasco, noting that anyone who did the proper research and due diligence would’ve known that the sale of a book’s copy had no copyrights attached to it. She said, “There still seems to be a wider misconception around what exactly NFTs are and what’s included when one purchases or trades an NFT in the space. As the industry develops, so will educational resources and a wider understanding of the market.”

Lawsuits begin to pour in

As things now stand, brands and companies have begun to crack down against NFT projects that violate copyright, IPs and trademarks. On Feb. 4, Nike filed a lawsuit against StockX for trademark infringement on Nike sneaker NFTs. The sneaker company has lodged a 50-page long complaint that claims the reseller has sold nearly 500 Nike brand sneaker NFTs impacting Nike’s reputation and legitimacy. Additionally, the shoemaker has accused StockX of selling the NFT sneakers at inflated prices amid “murky terms of purchase and ownership.”

Even French luxury fashion house Hermes has recently had a legal confrontation with Mason Rothschild, creator of Hermes Birkin bag-inspired NFTs MetaBirkins. Hermes mentioned in its complaint, the “defendant’s MetaBirkins brand simply rips off Hermès’ famous Birkin trademark by adding the generic prefix ‘meta’ to the famous trademark Birkin.” In response, the creator compared himself to Andy Warhol painting Campbell soup cans in that he is making art from a well-known commercial image.

Jeff Gluck, CEO of CXIP Labs — an NFT minting platform — discussed the incoming lawsuits with Cointelegraph. Gluck is also an IP and copyrights lawyer with over 14 years of experience in the legislative domain. He stated:

“There are dozens of artists preparing lawsuits against OpenSea for selling infringing NFTs. These examples are a sneak preview of a wave of litigation heading towards the space. It’s both good and bad in that it discourages creativity and growth in some ways, but it’s beneficial because it will ultimately help provide some guidelines in terms of clear legal parameters and guidelines for the space.”

Gluck further pointed out that one of the biggest problems NFT marketplaces are facing right now is that if they mint NFTs for their users and/or provide any level of curation, they are not shielded by the Digital Millennium Copyright Act (DMCA) and thus can be sued directly for copyright infringement by creators. The DMCA was passed in 1998 to implement the 1996 World Intellectual Property Organization’s Copyright Treaty and Performances and Phonograms Treaty. In part, it creates limitations on the liability of online service providers for copyright infringement.

Rossow believes that is an essential requirement for any NFT creator to highlight the copyright, trademark and IP implications of the NFTs they launch. He said, “The smart contract behind an NFT is what governs the rights on how it can be used. It would also make sense that the creator(s) behind any NFT project are crystal clear to their audience before minting on what rights they will have with the NFT once they mint and purchase it.”

Blockchain and copyright laws

The NFT industry has grown faster than even its participants could have imagined. The market sales surpassed $40 billion in 2021 just on the Ethereum blockchain. A recent NFT market report from Chainalysis found that the weekly total cryptocurrency value and average value per transaction have grown hand-in-hand from January to October in 2021. The prime reason for this growth is the hype that has surrounded these assets for the last two years from minting platforms, games, marketplaces, exchanges and others.

Related: From art to gaming: The biggest NFT trends of 2021

As a by-product of this high supply and demand, there are a lot of scams, hacks and other intentional property law violations that have been become more frequent. Tatibouet elaborated on this phenomenon, stating, “Considering many platforms have made minting NFTs quick and easy, it’s also made it possible for those with malicious intent to produce and sell NFTs of copyrighted items. Platforms are slowly starting to adapt to this; however, it may remain to be an issue for the foreseeable future.”

She also noted that platforms will need to adapt quickly and introduce barriers to those looking to abuse the system since they are liable to face legal repercussions, being the direct link between consumers and creators. As multinational companies that have large intellectual property libraries that are being abused, the NFT industry can expect legal issues down the road.

However, NFTs are also a relatively new innovation compared to the existing prevalent copyright, IP and trademark laws, which could be an opportunity to amend the law to account for this new technology. Varun Sethi, founder of blockchain legal services firm Blockchain Lawyer, told Cointelegraph that copyright laws need to recognize the tokenization of digital assets as a revolutionary and evolving legal option and accept the NFTs owner as the copyright owner.

However, Sethi noted the obstacles involved, saying, “There are challenges pertaining to updating of the registered owner as per copyright record plus fragmentation of ownership of a single digital art into multiple NFT owners plus payment of filing fees for becoming actual owner and not just an ostensible owner.”

Sethi foresees even more ownership issues when NFTs change hands unless the law is amended so that all NFT sales are recorded as ownership swapping as per the copyright office’s records.

Even though NFTs as a whole fall under copyright and IP laws of the countries in which they are issued, there are NFT projects that are now aiming to solve the grey area around this legal concern and offer copyrights for NFTs as well. CXIP Labs is such an example wherein copyright registrations are included in the minting process itself.

A platform called GuardianLink is using its proprietary artificial intelligence technology to monitor the web for any duplicate, rip-offs and copy-cat NFTs of the creators using their platform. This enables both creators and collections to protect their NFT assets.

The cryptocurrency community is known to adapt to changes fairly quickly due to the nascent nature of the industry and the technology. Thus, as the legal issues around NFTs develop and reveal more about what modifications need to be made to the prevalent structure, there will also be protocols that adapt.