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nft risks and opportunities

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copy. This reality may significantly limit the ability of NFT owners to post, share, or otherwise publicly display the NFT-associated image without exposure to liability for copyright infringement. The lack of copyright ownership of the digital image could also conceivably affect the ability to resell the NFT and the associated digital work. Notably, under the first sale doctrine, physical artwork owners can resell physical copies of copyrighted works without owning the copyright. But current copyright law has no first sale doctrine for digital works. In conformance with this principle, a U.S. district court famously prevented the sale of digital music files as copyright infringement, even where no copy or access was retained by the seller.[i] Unless views on this issue change, the absence of a first sale doctrine for digital works may greatly impact the resale rights of NFT owners. Second, because anyone can create an NFT, even for an image they do not actually own, NFTs may significantly impact the nature and frequency of copyright infringement. NFTs allow infringers to commodify art by creating tokens without the permission of the original artist. This practice has produced a new wave of copyright theft, impacting even Banksy works.[ii] Even assuming the Copyright Act is already sufficiently broad to capture and prohibit this conduct, NFT-based copyright infringement will be something entirely new to judges. Thus, it may produce costly litigation uncertainty for individuals and businesses affected by infringement. In addition, because NFTs are made of open source code and are unique, they may be entitled to their own copyrights, separate from the copyright for the associated digital image. Separate copyrights may increase the overall value of NFT ownership. However, this bifurcation of ownership in NFT digital works could further complicate infringement proceedings, as where a legitimate NFT owner is being sued for copyright infringement by the legitimate owner of the associated artwork. Third, NFTs may have significant copyright-related implications for platform owners. Like YouTube, NFT platform owners may be found to have obligations under the Digital Millennium Copyright Act (DMCA) or other legislation with respect to removing copyright-infringing content, responding to take-down requests, and so forth. As YouTube would likely attest, these obligations can be substantial. In preemptive response, some NFT auction sites have already created DMCA processes for removing unauthorized NFTs. For example, the NFT marketplace OpenSea states in its terms of service that it will “take down works in response to formal infringement claims and will terminate a user’s access to the Services if the user is determined to be a repeat infringer.”[iii] MakersPlace provides a statement of zero tolerance for intellectual property infringement on its platform; its terms of service provide a designated agent for DMCA notices as well as instructions for submitting copyright infringement claims.[iv] It is not yet certain to what extent the DMCA applies to NFT platforms. However, it seems likely that NFT platform owners will be subject to at least some responsibility for responding to copyright infringement on their sites. NFTs and Music/Entertainment Already, major musicians and entertainers are getting in on the NFT game. Kings of Leon released an NFT package under the group’s trademarked name. Mike Shinoda of Linkin Park launched a single with a parallel NFT for which fans paid thousands. Others artists who have or are expected to launch NFT auctions this month include Shawn Mendes, Post Malone, and Deadmau5. 2

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