In 2021, the market for non-fungible tokens (NFT) has experienced unprecedented enthusiasm. Although this market has generated millions of dollars especially on auction platforms, it is not always unanimous among copyright owners.
NFTs and intellectual property rights
The non-fungible tokens Where NFT became popular in the field of entertainment and in particular of art. Due to its authentication and traceability functions, the NFT allows tokeniser a work of art such as a picture, a painting, or a music. In short, the NFT is a perfectly suited technology to these areas, because the NFT allows certify authenticity of a work andensure full traceability of property rights. Moreover, recently artists like Booba have decided to create NFT to celebrate the release of a new album.
However, there are cases where creators of NFT are accused of making a illicit use rights attached to a physical work. In this regard, we can cite the case which opposes Miramax and the director of the film Pulp Fiction, Quentin Tarantino. The film’s production company took legal action against the director in order to to ban the sale of NFT on the theme of the film Pulp Fiction, which was due to be produced this month. The director assigned his copyright in the film to the Hollywood studio, while retaining some detailed broadcasting rights. So, according to Miramax NFTs not being targeted by these rights, Tarantino has exceeded the broadcast granted to it and therefore the sale should be canceled.
However, it will be appropriate towait for the reading which will be made of this clause by the American jurisdiction. In addition, this case seems to give brand protection ideas to big American companies. For example, Nike aims to increase the protection of its brand, by filing in new categories which could designate the NFTs:
- Virtual goods downloadable
- Accessories for use online and in virtual worlds in line
For the time being, NFTs suffer from legal ambiguity contentious.
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NFT lawsuits will continue to increase
The project Art Wars is a kind of collaborative work launched in 2013 to which more than 300 artists participated. It consists of customize the famous Stormtrooper helmets of the saga Star Wars. These were then photographed by an English photographer, Ben Moore, in order to be offered for sale in the form of NFT on the platform OpenSea. In addition, the collection of NFT included 1138 images some of which were offered for sale against hundreds, even thousands of Ethereum (ETH).
This sale started off very well by generating an amount of more than 1600 ETH, or more than $ 7 million at the time of writing. However, the Financial Times has reported that one ten artists who participated in this project, or assigns are planning to initiate a lawsuit because of this sale of NFT which is foreign to them.
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Indeed, many owners of rights in physical works have stated not having given their authorization to this use in the form of NFT. Thus, on November 21 OpenSea has removed items for sale of its platform, by conforming to a notice of copyright infringements.
In France if such actions were to be brought, it would be very interesting to analyze the reasons for his decision by the judge. Indeed, for the time being, no specific provision exists with regard to non-fungible tokens. Necessarily, the court should use the legal arsenal of intellectual property rights protection. However, as the deputy Pierre Person rightly pointed out to the National Assembly, it is becoming urgent to include these concepts in our law. If so, the risk is to miss the train of the NFT revolution.
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