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License Considerations IP owners can license their IP to developers in the blockchain space in order to reap the benefits of this emerging and very lucrative market. Strategic licensing for this channel can increase the profile, goodwill, and revenue, of IP that are interested in taking this step. However, various additional considerations arise with these opportunities to protect your IP and avoid other legal liability. IP owners who grant licenses to third parties for use of their IP need to factor NFTs into the scope of that license. Unless specifically licensing the work for use in NFTs, it may be wise to expressly preclude the licensee from creating NFTs based on the licensed work. When expressly licensing rights to NFTs, it is important to be clear what is and what is not being licensed. When licensing IP for use in an NFT, the scope of the license should be limited to that purpose and other restrictions should be considered. Typically, the license will reserve all other rights to the IP owner. For example, a creator may grant rights to create a limited number of NFTs associated with a copyrighted work, in order to maintain the scarcity (and associated value) of the NFT based on such work. As another example, a licensor may choose to expressly prohibit, or impose restrictions on the right of the licensee to make modifications associated with the licensed work for purposes of the NFT. This is particularly important given the growing prevalence of layered art, programmable art and generative art. Each of these techniques can cause your IP to be used with other IP or to be modified in ways that you may not desire. Capture Unique Revenue Models IP owners who grant rights to create NFTs based on their IP may wish to clearly address revenue share issues for both the sale and resale of any NFTs. Many NFTs are structured such that the NFT “creator” gets paid on the initial sale, but also (via smart contracts) on any resale. Licensors can ensure their cut of NFT resale revenue with well-drafted license agreements. IP Protection Strategies for Brands As brands become more aggressive in creating their own tokenized assets during this early stage of the NFT boom, they would be prudent to consider rethinking their IP protection strategy. For example, brand owners should consider extending their trademark registrations to cover trademark uses and classifications that include NFTs. They may also choose to associate certain designs or trade dress with their brand. Design patents should also be considered, where appropriate. Design patent are particularly valuable since profits from the sale and resale of NFTs can be significant. And unlike trademark, trade dress and copyright protection, the owner of a design patent can be entitled to all of an infringer’s profits, not just the portion of profits attributable to the use of the design. Considerations for NFT creators While opportunities for tokenized content abound, it is important for NFT creators to be cautious about incorporating third party IP in their NFT content. Despite any misperceptions that may exist about traditional law not applying to decentralized blockchain technology, the fact is that third party IP rights, including trademark, copyright and design patent can be asserted, and are being asserted, against NFT creators who have not obtained a license or other legal rights to IP included in their NFTs. Early Consideration of IP Rights Can Save Time and Expense Down the Road Creators of tokenized content should think twice about using a brand name, logo, famous character, picture, video, music or other third party IP without permission. Creators would be wise to seek legal counsel before using third party IP in their NFTs. Just because an IP owner has not yet enforced their IP against creators in the blockchain space, does not mean that they will not do so in the future, especially as more money pours into this space. Seeking advice early can help save significant expense and hassle in the future. Page 2 www.sheppardmullin.comPDF Image | NFTs and Intellectual Property
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