CC0: What is it and what does it mean for NFT creators and holders?
As a commercial lawyer, with a strong background in intellectual property, the NFT industry has been a fascinating case study in the development and evolution of intellectual property rights related to digital artworks and other media formats in a burgeoning industry.
You may have followed the many threads and articles which were published regarding the big question of whether NFTs in general and generative artworks, in particular, are copyrightable under US law. If you missed it, you can get up to speed by watching my recent lecture on the subject at ETHcc5 in Paris, last month:
More recently, the conversation has turned again to the popular open-source license, Creative Commons Zero (CC0), as Kevin Rose, of the OG NFT projects, Moonbirds, and Moonbirds Oddities, announced that the license to these collections has now migrated to CC0 — meaning, basically, that anyone can now utilize Moonbirds NFT art without any copyright limitations.
Let’s talk a little bit about what that means.
First, it’s important to note, that some of the most well-known projects in the NFT space are licensed under CC0. For example, CrypToadz, Nouns, and Deca. More and more projects have been taking this route of late, including GoblinTown, OSF and XCOPY, leading crypto-Twitter personality, Zeneca_33, to coin this the ‘Summer of CC0’.
For purposes of this discussion, it’s important to understand that within the realm of IP law, there are two key frameworks — trademark and copyright.
Trademarks won’t be the focus of this article but it’s important to understand what they are in order to grasp the full picture. Trademarks protect words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others. In the United States, if a trademark is registered on a work, such work may not be used by others for similar goods or services without the permission of the trademark holder. Registered trademarks can potentially last forever — as long as the trademark holder continues to use the trademark in commerce and maintain periodic renewal filings, the such holder can keep the trademark alive and continue using it in perpetuity.
Copyright, on the other hand, protects stories, movies, tv shows, photographs, paintings, and other creative works, however, it does not protect facts, ideas, systems, or methods of operation, although it can protect the way these things are expressed. It can, in certain cases, also protect characters (like Iron Man and Mickey Mouse).
Copyright differs from trademarks in that it doesn’t require registration with the United States Patent and Trademark Office (USPTO), rather, it exists inherently, when the work is created. Notwithstanding, while registration of copyright is voluntary, it is required if you want the ability to bring a lawsuit for infringement of such works in the United States.
If the copyrighted work is created by an individual, like an artist or the author of a book, the copyright lasts from its creation and for up to 70 years after the creator’s death. For pseudonymous works and works created by legal entities, copyright can last between 95 -120 years from the creation/publication of the work. Thereafter, the work goes into the public domain where it is no longer protected under copyright law — ultimately, this means that anyone can use the work for whatever purpose they want, but no one can ever own it again.
As noted above, CC0 is a type of open-source license in which “no rights are reserved”. It was created by Creative Commons and is available for anyone to use, at: https://creativecommons.org/
At our law practice, when we work with NFT collections, we’re constantly stressing to them the importance of transparency vis-à-vis their holders. Usually, that manifests itself, first and foremost, in drafting clear licensing terms associated with their collection.
What does this mean?
Well, if you are selling an NFT — what rights will the purchaser of that NFT have with respect to the NFT? Can they resell it? Display it? Create physical print and distribute copies? Can they use it to make merchandise for resale?
A licensing agreement will address all of this and more. While there are certain rights that are inherently yours by virtue of you having been responsible for the creation of the work, in most cases, if you want other people to be able to use it, you’ll need to establish clear licensing rights.
In some cases, rather than drafting terms from scratch, creators will opt to adopt a pre-existing licensing regime, such as CC0. If you’ve ever created something on GitHub, this process will be familiar to you, as ultimately you are asked to associate your code with a license — common open-source licenses are LGPL, MIT, Apache, BSD, etc.
CC0 is associated with what’s known as the “copyleft” movement, which is ultimately a movement to liberalize intellectual property rights and to make them less restrictive and available for the use of the general public.
As noted above, there are certain rights that are inherently yours (i.e. the creator’s) by virtue of you having been responsible for the creation of the work — typically, this refers to the exclusive rights to reproduce (e.g. make a photocopy), adapt (e.g. make a movie out of a book, or create a derivative art project, drawing on the initial IP), publish (to distribute copies), perform (playing music), and display (in public) the work.
Generally, when you buy a work (i.e. you are not the creator), you have the limited right to use the work, as contemplated, for personal use. However, you may not use the work for commercial purposes (e.g., publicly screening a film and charging money to watch it).
Ok, now that we have a basic understanding of the rights protected by copyright, what rights are afforded to holders under a CC0 license?
As the CC0 license self-describes itself, creators or owners licensing their works under CC0, are effectively relinquishing their inherent copyrights to the work, and is placing them, as completely as legally possible, in the public domain, for the purpose of contributing to the greater good — “a commons of creative, cultural and scientific works that the public can reliably and without fear of later claims of infringement build upon, modify, incorporate in other works, reuse and redistribute as freely as possible in any form whatsoever and for any purposes, including without limitation commercial purposes”.
Yes, this means that anyone can use your IP, even for commercial purposes, without needing to obtain permission from or providing credit to, the creator.
Essentially, the reason that Moonbirds holders are infuriated at Kevin Rose’s decision to opt for a CC0 license for the Moonbirds and Oddities collections, is that, in doing so, he took something very valuable away from them — he took away their individuality and opened up their IP to anyone to freely “infringe” upon it (albeit, without infringing). Now, if a Moonbirds holder wants to develop a brand around his Moonbird, it is no longer unique to him, as anyone else can do the same, without infringing.
Coming from the tech world, having advised companies in the SaaS industry for years, and always being on the lookout for “contaminating”, copy-left software, I’m used to looking at copy-left as the enemy. It’s no wonder that I’m not a great fan of CC0.
While in some cases, with specific characters and art forms, it may be beneficial to opt for a CC0 license — to open up your IP to the masses and allow wide-scale creativity and contribution — I feel very strongly that this is not the right move for brands.
@exlawyernft, an great art lover, and (you guessed it) an ex-lawyer, wrote a fantastic thread, a few months ago, on how CC0 can be the new paradigm for the creation of culture in the art industry:
However, CC0 isn’t for everyone. If you are looking to build a company, a brand, and a lasting community, you need to retain your core IP and you need to protect it at all costs, both for your benefit and for the benefit of your community, who are trusting you to keep building and to retain the individuality, exclusivity, and caliber of your brand.
If you’re the latter, make sure your IP is carefully protected. Make sure to have a conversation with your team about IP rights. Make sure any artists and graphic designers you engage with have entered into service agreements with you, assigning all IP they develop to the company, and make sure you draft clear licensing terms which are made available to your holders so that everyone is on the same page and is aware of their rights with respect to the IP.
If this is all a bit confusing, read it again, and then send me an email or a DM on LinkedIn/Twitter, and I’ll walk you through it.
