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But the real value of NFTs may be in their potential to disintermediate music and entertainment, allowing independent artists to step out from the shadow of record labels, publishers, and similar entities that, to date, have largely dictated who makes money from their art and on what terms. Recently, several companies have formed with the business purpose of music sales and copyright tracking. For example, Bluebox uses blockchain technology and NFTs to manage music copyright information, helping artists “reclaim missed monetization opportunities” and “sales of future royalties.”[v] Specifically, Bluebox helps artists instantly create and register a copyright. Bluebox then divides each music track “into 100 NFTs, representing [a] 1% split of that song’s copyright and half of them will be sold to the public.”[vi] Bluebox’s CEO stated that the site could “spark a copyright sale revolution amongst fans, who will be able to buy pieces of songs and recordings before their favorite artist hits the big time—and then reap the rewards of this investment down the line.”[vii] NFTs could be a gamechanger for independent musicians, and further technological advances could significantly expand this potential. For example, imagine if NFTs could track not only sales or changes in ownership but also song “plays.” NFTs could then use their automatic royalty distribution function to reward artists, on a direct and personal basis, for their creative successes. NFTs and False Advertising An additional consideration that may affect the value of NFT ownership is the risk of false advertising claims against NFT sellers. Because of the technological and legal complexities of NFTs, it may be unclear to consumers exactly what they are purchasing and what kind of rights they will obtain through the purchase of an NFT. This creates a risk of false advertising liability for those engaged in NFT sales. Under the Lanham Act, NFT purchasers might have a claim for false advertising if they can show: (1) the seller made false or misleading statements as to the NFT products; (2) actual deception or a tendency to deceive a substantial portion of the intended audience; (3) the deception is material; (4) the advertised NFT goods travel in interstate commerce; and (5) a likelihood of injury to the plaintiff. To preempt these kinds of claims, NFT sellers should be extremely clear about the ownership contours of each transaction—like that purchase of the NFT does not convey the copyright for the associated digital image, or that the particular digital image is one of some certain number of copies, each sold with their own NFT. Some NFT platforms, like NBA Top Shot, have already acted to prevent false advertising liability by promulgating NFT license templates that carefully distinguish the NFT token from the associated digital artwork.[viii] These types of templates may be useful to NFT platform owners and sellers in preventing false advertising liability. NFTs and Brand Management While NFTs have been regarded by some as a passing fad, substantial investment by major brands suggests real value in possessing an NFT asset portfolio. 3PDF Image | nft risks and opportunities
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