NFTs are Fun Again? CC0 Revisited
Recent developments in the NFT space, especially with Moonbirds, have brought the intersection of NFTs and copyright law back into the spotlight. Moonbirds, known for its collection of owl-themed NFTs, originally presented as a typical NFT project featuring cute animals, is distinguished by two significant aspects.
Firstly, Moonbirds is an on-chain project, where the artwork and its ownership proof are fully stored on the blockchain, unlike other NFTs that typically rely on off-chain storage like IPFS. Secondly, in a pivotal shift in 2022, the developers of Moonbirds adopted a CC0 (Creative Commons Zero) licensing model, making their artworks available without any copyright restrictions.
This move to CC0, which I discussed extensively in a previous Medium article, signaled a bold step towards openness and inclusivity in the digital art world. Kevin Rose, the founder of Moonbirds, articulated that this approach was intended to foster a more inclusive and open environment in the Web3 space.
This philosophy aligns with the principles I’ve previously outlined, emphasizing that CC0 can dramatically alter the traditional frameworks of intellectual property, particularly in the NFT domain.
However, the recent acquisition of Proof Collective by Yuga Labs, followed by the controversial decision to issue a new commercial collection called Mythics under more restrictive terms, has sparked intense debate and concern.
This move questions the irrevocable nature of CC0 licenses, as once an artwork is released under such a license, it should theoretically remain free for public use indefinitely.
In my analysis, both on LinkedIn and in my prior Medium post, I’ve stressed the potential risks and implications of such decisions. The legal challenge lies in the fundamental nature of CC0 — it is designed to be irrevocable. This means that any attempt to restrict the use of previously released CC0 artworks, as Yuga Labs seems to be exploring, could lead to significant legal disputes, reflecting a misunderstanding or disregard for the binding nature of such licenses.
Prof. Brian L. Frye has pointed at the Highsmith v. Getty case as a point of reference in this regard.
In the case of Highsmith v. Getty Images, photographer Carol Highsmith sued Getty Images after she discovered that Getty was charging licensing fees for the use of her photographs, which she had donated to the public domain. Highsmith had provided thousands of her photographs to the Library of Congress to be made available to the public free of charge. Getty Images, however, had included these public domain images in their collection and was charging users for licensing them. Highsmith filed a lawsuit alleging copyright infringement and other claims, arguing that Getty’s actions were misleading to the public and misrepresented her intention to provide the images for free use.
The Highsmith v. Getty case offers significant insights into the irrevocable nature of releasing works into the public domain, a critical aspect for understanding the Moonbirds’ transition to [and from] a CC0 license. In Highsmith’s lawsuit against Getty Images, the court highlighted that once an image is donated to the public domain, the donor relinquishes all exclusive rights to that image. Similarly, once Moonbirds’ artwork was released under CC0, it became a permanent part of the public domain, accessible for anyone to use freely. This parallel underscores the irreversible nature of CC0 licenses and the limitations on asserting control over such works post-release.
Additionally, the Highsmith case raises important considerations about commercializing public domain works. While Getty was legally permitted to license public domain images, their approach led to confusion among consumers regarding the rights being purchased. This scenario mirrors potential challenges for Moonbirds, emphasizing the need for clear communication about what rights are conferred through new NFT issues compared to the original CC0 artworks. This ensures transparency and prevents legal disputes arising from misunderstandings similar to those faced by Getty, reinforcing the necessity of meticulous licensing strategies in the evolving NFT landscape.
Moreover, the broader implications for the NFT market are profound. As discussed in my previous writings, the adoption of CC0 should be a well-considered decision, given its irreversible impact on the exclusivity and control over one’s intellectual property. The ongoing situation with Moonbirds could serve as a crucial case study for NFT creators and holders, highlighting the need for clarity, foresight, and strategic thinking in managing digital assets.
In conclusion, the intersection of NFTs and copyright law remains a dynamically evolving area, fraught with complexities and legal nuances. As we continue to navigate these waters, it is essential to consider the long-term implications of licensing choices like CC0, which not only affect legal rights but also shape the economic and creative landscape of the digital art world.
