Can anyone mint NFTs ? — Part II
As discussed in the previous article, it is the creator of an artwork who enjoys its copyright. This right, which is created the moment the artwork is created, includes the right to copy the art, make derivatives of it and also commercially benefit from it. In this article, we take a look at how copyright in the art is linked to the right to mint NFTs.
NFTs and Copyright
It is true that the Berne Convention makes no reference to NFTs, and therefore having copyright of an art does not expressly give you the right to mint NFTs of the art. Well, NFTs were not the first thing in the minds of the drafters, when the convention was prepared in the 19th century. So let’s look at whether the right to mint NFTs falls within the express bundle of rights which law recognises. But first, it is important to understand that minting an NFT does not directly amount to using or copying an existing artwork. In most cases, it is the link to a copy of the artwork which is contained in an NFT. Primarily because including the artwork itself in the NFT, as metadata, is expensive. Either way, minting an NFT requires you to use or copy existing artwork.
Regarding the question whether minting an NFT forms part of copyright, scholars hold varied views.. According to some scholars, an NFT could be regarded as an adaptation of the original art and thus forms part of the bundle of rights that copyright law protects. Adaptation basically means transfer of a work of art from one style, culture or medium to another. Other scholars believe that NFTs could be a reproduction of the original work. A reproduction is a copy of another work of art. It could be a copy of a painting, drawing or of an original print. There is no creative process involved. The present jurisprudence already protects online pictures/videos, so why not NFTs? Moreover, the fact that Article 9 of the Berne Convention expands the right of authors to reproduce their work in any manner or form may also be considered as a strong argument in favour of considering the right to mint NFTs, a part of copyright.
Assignment, Licensing and right to mint NFTs
The moment an artwork is created, it is automatically copyright protected. Copyright in any original work of art belongs to the author/artist, unless it is legally assigned to someone else. Assignment of copyright occurs when the copyright holder transfers ownership of the copyright to another person or organization. Alternatively, you may licence certain rights to another, such as the right to make copies of an artwork, without assigning the entire copyright. Using an art or literary work without having been assigned the copyright or the license to use that particular work, amounts to copyright infringement. For eg. even though you own a painting, you cannot reproduce copies of it without the permission of the author/artist, because owning a painting does not mean that the right of reproduction (one of the economic rights under copyright), or any copyright is transferred to you. If we move forward with this rationale, then only the copyright owner of the art can make an NFT of it.
Remember the whole Spice DAO — Dune fiasco? Late last year, Spice DAO paid 2.6 Million Euros at auction for a rare book detailing director Alejandro Jodorowsky’s adaptation of ‘Dune’. Spice DAO announced on Twitter that it had won the auction for the book and would be producing an original animated series inspired by the book, to be sold to streaming services. However, in making the purchase, the group was guided by the misconception that by owning the physical book, the group would also own the underlying rights in the book. Unfortunately, this was not the case. When thinking about ownership of a book, it is important to separate the book and the copyright in the book. While the DAO may own the book, it does not own the copyright in the book. This means that the DAO does not have the right to use the script, storyboard or other elements within the book to create a TV series. The exclusive right to do so is maintained by the copyright owner.
Food for thought: if you buy a copy of Harry Potter and the Goblet of Fire, do you automatically get the rights to make a movie on it ?
It’s a wrap
Having understood how copyright law might apply to NFTs, it’s time to finally move on to who might be able to mint NFTs. In the next and final part of this series we analyse whether you have the right to mint NFTs of an art or literary work, along with some examples of legal cases relating to this.
The res ed cohort programme is an initiative by resolutio to help spread awareness on NFT rights. Learn about our cohort here. For updates, follow us on Twitter and join our Discord Community.
