Why are NOT Okay Bears, okay? Spoiler: They’re not!
Ethereum NFTs have had their fair share of fun in the sun, now it’s Solana’s turn.
One Solana NFT project that skyrocketed recently was the “Okay Bears”, appropriately named for the bear market we are all now experiencing. However, their success did not go unnoticed — a near-identical, mirrored version of the Okay Bears, coined ‘Not Okay Bears’, with the exact same art, only facing left instead of right, was minted yesterday on the Ethereum blockchain, similar to PHAYC, the Bored Ape Yacht Club (BAYC) copy-cat launched earlier this year. Both projects were removed from the OpenSea NFT marketplace due to blatant copyright infringement, but continue to be listed on LooksRare.
Okay Bears have copyrighted the original artwork and, as such, likely filed a DMCA claim and issued a takedown notice to OpenSea, which led to their removal from the platform.
The DMCA notice and takedown process is a tool for copyright holders to protect their copyrights and to get materials that infringe their copyright removed from websites or other web platforms.
The process is fairly simple. The copyright owner sends a DMCA takedown notice to a service provider (ex: YouTube, Google, OpenSea, etc.), requesting the provider to remove material that is infringing their copyright. The DMCA takedown process can be used regardless of whether the copyright owner has registered their work with the U.S. Copyright Office or any other official registrar.
The practice of using the DMCA to protect brands’ copyrights is nothing new, however, as with many things, Web3 and NFTs in particular, are playing dangerously close to the edge and testing the boundaries.
One conceptual artist, Ryder Ripps, in particular, has been testing boundaries for some time now. He first took a shot at Larva Labs, the original creator of Crypto Punks, in June 2021, when he minted his own version of a CryptoPunk and was issued a DMCA takedown notice by Larva. However, Ripps decided to fight the notice and submitted a counterclaim, saying his work falls under “fair use,” (one of the defenses against a copyright infringement claim, allowing for the use of a third party’s copyright without permission from the owner).
Ripps later minted his own copycat collection of BAYC, and, this time received a DMCA takedown notice from BAYC creators, Yuga Labs. However, in perfect timing for the publication of this article, yesterday, Yuga Labs retracted their DMCA notice against Ripps’ collection.
Before we go any further, let’s just clarify a few things as there seems to be a lot of confusion about intellectual property (IP) in Web3, specifically about the differences between copyright and trademark.
Copyright intends to protect artists from infringement by third parties of their works. The creator of an original work, by default, becomes the copyright owner, while trademarks, which are filed and registered on a jurisdictional basis, serve largely to protect consumers from confusion between original works and copycats. The latest DMCA cases against Not Okay Bears and Ryder Ripps are about copyright.
There are a number of web3 factors that make IP in this space interesting:
Anonymity — it’s difficult to make a claim when you, as a creator, remain anonymous. It’s even more difficult when the party that the claim is directed at, is also anonymous. While ultimately DMCA takedown notices are directed at the platforms which are used to sell and distribute the allegedly infringing NFTs, in a largely decentralized and anonymous environment, its not difficult to relocate an infringing collection to a new marketplace.
Web3 principles: Web3 communities and advocates are notoriously liberal and vocal against what they view as antiquated, centralized, capitalistic norms. For example, in response to the DMCA takewdown notice issued to OpenSea with respect to the Not Okay Bears collection, one Twitter user wrote:
Those same web3 principles seem to extend to the would-be enforcers of the copyright — in this case, Yuga Labs. In addition to retracting their DMCA notice against Ripps’ collection, Yuga Labs reportedly decided not to pursue any of Larva Labs’ previous DMCA takedown requests regarding derivative projects when they acquired the majority of Larva’s NFT assets in March.
It will be interesting to see how traditional IP rights and enforcement principles continue to play a part in this burgeoning industry, and how new social norms may have an effect on more traditional industries.
Another area of Web3 where we will likely see a lot of controversies as contemporary IP norms come into question is with respect to domain names. ENS (.eth) and Bonfida (.sol) domains have become increasingly popular. There has been a mad rush to buy ENS domains in recent weeks. One Twitter user wrote that he bought the ENS domain of every major tech company in the US. This is a common practice known as “domain grabbing”. There are many interesting questions with respect to this practice, especially as they relate to Web3, however, this is a whole other issue to the one mentioned above as it relates to trademarks and their enforcement, but it’s definitely a relevant one, however, we’ll save this for a separate piece (stay tuned :)).
In any event, Web3 principles or not, ultimately, I think that the copycats and the liberal approach to enforcing traditional copyrights are hurtful to the space and to what Web3 supporters are trying to achieve. If we want decentralized economies to flourish, we have to be respectful of one another and behave like mature adults, otherwise, we will end up bringing Web3’s premature demise.
