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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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• o Faster transaction processing Drawbacks. Potential drawbacks of sidechains include: o Additional steps that can result in friction and added complexity o Users utilizing multiple marketplaces may not have a seamless experience across marketplaces o Possible messaging and public relations issues Many states regulate the use of cryptocurrencies. Thus, you will need to ensure you are in full compliance with the laws of every state that may affect your client. For guidance on such laws, see Virtual Currency State Law Survey. For clients that are considering operating a marketplace, you will also need to review federal rules and regulations regarding transfers of money. Restrictions related to compliance need to be included in user agreements. Continuing Royalties for Creators Proponents of NFTs regularly argue that continuing royalties for creators of works is a substantial benefit of NFTs. Note, however, that such royalties may not always be part of an agreement. You will need to determine whether continuing royalty payments exist and, if so: • Who pays the royalties • Whether a given marketplace will also take a commission on royalty payments Infringement and Counterfeiting Issues Marketplaces may be liable for indirect infringement of copyrights and trademarks. If your client is considering operating a marketplace, you will need to put in place policies and procedures for handling Digital Millennium Copyright Act (DMCA) takedown notices and other infringement allegations. These should address, among other things, whether and how user accounts and/or allegedly infringing NFTs will be restricted (such as prohibitions on displaying an infringing NFT). For a sample policy, see Website Copyright Policy. For more information on the DMCA, see DMCA Compliance and Enforcement and DMCA Safe Harbor for User-Generated Content. Copyright Ownership Considerations Another key consideration is who owns the intellectual property rights for assets that are minted into NFTs. For copyrightable works, except in the case of a work made for hire, the author of a work owns the copyright. See Copyright Fundamentals and Works Made for Hire. However, because a copyright is distinct and separate from the underlying work, a sale of the work does not necessarily transfer ownership from the owner to a subsequent purchaser, absent an assignment or exclusive license. See Transfers of Copyright Ownership and Assignments of Copyrights. For instance, a person who purchases a painting would generally own the painting itself (and would be able to sell or dispose of the Lazy minting refers to the practice of not minting an NFT until there is a recorded sale, at which point the NFT is both minted and transferred. While the minting may appear to be “free,” note that the cost of minting may actually be included in the transaction fee charged by the marketplace. Also bear in mind that larger NFTs, such as those that incorporate digital artwork with large file sizes, will cost more in gas fees to mint than smaller NFTs. To reduce NFT size (and minting costs), many users mint NFTs that do not themselves contain the asset being transferred but instead contain only a link or other access right to the asset, which is stored elsewhere. However, if storing the asset outside of the NFT, you must address a host of other issues, such as: • Where the asset is stored • How it is stored • How access is granted • How security is maintained Transaction Fees Marketplaces can elect to charge fees for transactions. Fees can be charged to the seller, the buyer, or both. Fees can be charged upfront (such as a listing fee) or taken from the proceeds of the transaction. Setup Fees Some marketplaces charge a setup fee or otherwise restrict who can join the marketplace to applicants only (such as NiftyGateway and SuperRare, which require creators to apply to create NFTs on their marketplaces). These marketplaces are often trying to curate the NFTs offered for sale to increase quality and reduce potential scams. Withdrawal Fees and Limitations Some marketplaces (such as NBA TopShot) place restrictions on the ability of users to withdraw the proceeds of sales of NFTs. For instance, they might charge withdrawal fees and/or restrict the timing and amounts of withdrawals. Relevant Rules and Regulations Somewhat related to withdrawal fees and withdrawal limitations are the financial regulatory and tax considerations.

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