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Non-fungible Tokens and Intellectual Property Law

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Non-fungible Tokens and Intellectual Property Law ( non-fungible-tokens-and-intellectual-property-law )

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tracking real-world assets, like real-estate.” While real estate transactions have not yet been turned into NFTs, a wide variety of items have been minted into NFTs, such as: • Music • Sneakers and shoes • Digital art • Physical art • Videogame assets (such as unique swords and player skins) • Virtual real estate There is almost no limit as to what can be minted into an NFT. If the minimum technical requirements of the NFT standard being used are satisfied, an NFT can be minted. Key Issues in NFT Marketplace Licenses and User Agreements When counseling clients who wish to create or use an NFT marketplace, key issues to consider include: • The relevant blockchain and associated NFT standard • Gas fees for minting NFTs • Transaction fees • Setup fees • Withdrawal fees and limitations • Relevant rules and regulations • Continuing royalties for creators • Infringement and counterfeiting issues Each is discussed below. Relevant Blockchain and NFT Standard NFT marketplaces exist on different blockchains which, in turn, have different NFT standards, which are not interchangeable. While it is possible to move an NFT from one blockchain to another, it may not necessarily be easy. Thus, when counseling clients who wish to create or use an NFT marketplace, be sure to: • Identify the blockchain and associated NFT standard (while the Ethereum blockchain and its ERC-721 standard is the most common and popular, there are other blockchains, standards, and sub-standards, each with its own advantages and disadvantages) • Analyze their various capabilities, restrictions, and costs, such as: o Transaction costs (e.g., the Bitcoin (BTC) blockchain can technically mint NFTs but transaction costs on the BTC chain create a strong financial disincentive to do so) o The overall number of users buying and selling NFTs on a particular blockchain (the more users, the more liquidity in a marketplace) You should work with the client’s technical team when undertaking this review, as it implicates technical requirements along with financial and legal considerations. Gas Fees for Minting NFTs Due to the nature of current blockchains, there will always be fees (known as “gas” fees) for minting an NFT, which requires computing power and other resources such as energy. When advising clients, you must determine how much those fees are and who—the marketplace or the user—will be responsible for paying them. Gas fees can be extremely expensive and vary widely. For instance, the gas cost to mint an NFT on Ethereum started at only a dollar or two but has since increased and can exceed hundreds of dollars per NFT. This is because pricing for gas is dynamic—the busier a blockchain is (such as Ethereum), the higher the gas fees (in other words, you need to pay more to ensure your transaction gets processed). Additionally, gas is paid in the subject blockchain’s cryptocurrency, which is subject to exchange rate fluctuations against traditional currencies (such as the dollar). Many marketplaces require the user to pay for the gas, but others (such as OpenSea) do not. This is usually done in one of two ways: • By using a sidechain • Lazy minting A sidechain is a different but compatible blockchain that operates alongside of, but distinct from, the main blockchain. NFTs can be transferred from the sidechain to the main chain such that a marketplace is not forced to operate on a single chain. There are various benefits and potential drawbacks of using a sidechain for an NFT marketplace: • Benefits. Benefits of sidechains include: o Less traffic than the main blockchain o Potentially lower creation and transfer costs

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