Harrison Jordan
For contemporary artists, attaching work to the blockchain in the form of a non-fungible token (NFT) may seem like a secure and verifiable way to sell art online.
In some ways, it is. Blockchain inherently records time-stamped data on all transactions, with a permanent indication of ownership across a distributed ledger. A look inside a blockchain’s transactions will provide all the information needed about when an NFT was traded, who was involved in the transaction and how much was spent.
But the reality of NFT ownership is much more complicated than one might imagine. As a new crypto asset class, NFTs appear to exist almost unbound by current regulatory systems. But when combined with art, there are overlaps to consider. Understanding the legal pitfalls of the contemporary NFT ecosystem is the first step in unlocking its potential.
Does copyright exist on the blockchain?
High hopes abound for the potential of NFTs to serve as copyright alternatives, with many believing them to be copyrights themselves. When viewed at face value, it’s easy to understand the confusion.
The truth is, NFTs are just tokens that represent an asset, completely separate from the assets themselves. Because every NFT represents a unique asset, a single NFT can’t be duplicated while maintaining the same value as the original. Many equate this exclusive form of ownership with ownership of the work itself, but the distinction must be emphasized.
This misconception goes further. The range of possibilities for what can be an NFT coincides surprisingly well with works eligible for copyright. While every jurisdiction defines “works” in different ways, none stray too far from the essentials. In Canada, for example, copyright protection extends to literary, artistic, dramatic or musical works in addition to performances, recordings and other related works. Creators need not apply for these protections — the state provides them inherently upon the creation of the work.
Naturally, this protection is guaranteed for the original work that an NFT represents. When artwork is created and auctioned on an NFT marketplace, the copyright functions almost exactly as it would in an in-person scenario, with the copyright retained by the artist. But a lack of copyright trading infrastructure that complies with international law makes the exchange of NFT copyrights impossible on current platforms.
So unless an external agreement is made between the artist and the buyer, the bundle of copyrights to an NFT still belong to the original artist. The NFT purchaser owns nothing more than a unique hash on the blockchain with a transactional record and a hyperlink to the file of the artwork.
Without legal parameters, fraud is inevitable
The issue of NFT copyright tracking gets even trickier when considering the potential for theft and fraud. In order to be added to the blockchain, NFTs must be “signed” by the uploader in a process known as “minting.” Similar to a painter’s signature on their painting, this feature is intended to link the NFT to its creator. Things can go wrong when minters lie about their identity, which is not uncommon across many NFT platforms.
The issue stems from the lack of a strong legal framework in the NFT market. One can mint a tweet, art piece or even a gif of Nyan Cat without being the actual creator on some platforms. As a result, many artists have reported seeing their art being stolen and sold in NFT form without their consent in what would clearly be a copyright violation in the traditional art marketplace.
This issue is particularly pervasive among NFT tweet exchanges. A Twitter bot known as @tokenizedtweets went on a minting spree earlier this year, sending shockwaves throughout Twitter and the NFT community. Its policy of creating NFTs from viral tweets without the author’s consent or even notification caused an outcry from several actors, artists and other creators, provoking responses from names as big as William Shatner, who expressed concern about “these @tokenizedtweets stealing content, images I upload and my tweets which are all under my copyright being tokenized and sold without permission.”
Theft and fraud are natural results of platforms that lack a strong legal infrastructure. The actions of @tokenizedtweets, now banned from Twitter, demonstrates this issue well.
What’s missing? International compliance
So far, no NFT platforms have ventured into internationally compliant territory for the copyright of art that an NFT sale represents. Doing so would be a tremendous leap for the NFT ecosystem. In addition to minimizing fraud through stronger copyright enforcement, international compliance would allow for tokenized copyright exchange within the blockchain itself.
The groundwork has already been laid thanks to the 1886 Berne Convention, an international agreement that guarantees standardized copyright protection at the moment a work is created in any of its 179 signatory countries. The treaty was tested in 2014, for example, when Tom Petty sued Sam Smith for copyright infringement over Smith’s hit song, “Stay With Me,” which is almost melodically identical to Petty’s “I Won’t Back Down.” The suit and settlement, which includes royalties to Petty’s estate, demonstrated the continuing functionality of the Berne Convention.
The 1996 WIPO Copyright Treaty formally brought Berne principles into the digital art realm, but many Berne Convention signatories didn’t sign it. With no new treaties on the horizon, the private sector may have to pick up the slack left behind by world governments.
The NFT world still fails to comply with the diversity of copyright law around the world despite the uniformity imposed by international treaties. To move the industry away from speculation and into global functionality, international copyright compliance must be incorporated into this emerging ecosystem.
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