Can anyone mint NFTs? — Part III
In the previous article we looked at assignment of copyright, and how copyright over an artwork might dictate whether you can mint its NFT. In this part, we finally analyse whether you have the right to mint NFTs of artwork.
Who can mint NFTs of artwork ?
A. If you’re the author of the work, who also has its copyright, then you may mint your art’s NFT.
B. If the copyright has been assigned to you, you might be able to mint its NFT. But there is scope for the argument that the assignment of copyright did not include the right to mint an NFT. To avoid this, make sure copyright assignment expressly includes the right to mint an NFT. Moreover, if the assignment was made at a time when the act of minting NFTs did not exist, it is likely that you, as the assignee, may not have the right to mint.
C. If you have a copyright licence, you might be able to mint the artwork’s NFT, if the right to mint is implicit in the licence.
D. If a copyright assignment or licence has expressly excluded the right to mint NFTs, then you may not mint and use the NFT of that art work.
E. If there is an express agreement by the copyright holder, allowing you to mint, you may do so. This could be accompanied by copyright licence or assignment.
Let’s take a look at a few case laws . . .
In June 2021, Roc-A-Fella Records initiated a lawsuit against its co-founder Damon Dash for allegedly attempting to “mint” and sell Jay-Z’s album Reasonable Doubt as an NFT. According to Roc-A-Fella, Dash planned to sell an NFT of the Reasonable Doubt copyright through an auction on an NFT platform. It was alleged in the complaint that the attempted sale of the album’s copyright was improper: “Dash can’t sell what he doesn’t own, and attempting such a sale, Dash has converted a corporate asset and has breached his fiduciary duties.” A federal district court in New York City has ruled in favor of Roc-A-Fella. It granted Roc-A-Fella a temporary restraining order, effectively barring Dash from altering, selling, or otherwise disposing any copyright or other property interest in Reasonable Doubt, including the auction of an NFT reflecting such interest.
Heard of the whole Quentin Tarantino — Miramax imbroglio? In November 2021, production company Miramax sued director Quentin Tarantino in a California federal court, alleging breach of contract and copyright infringement. The lawsuit arises out of Tarantino’s intention to auction seven “exclusive scenes” in the form of NFTs from his handwritten Pulp Fiction script. According to Miramax’s complaint, NFTs do not fall under Tarantino’s limited contract rights for the film. Miramax holds the rights to develop, market, and sell NFTs relating to its deep film library. This case is still under judicial consideration.
Another awaited case is the Nike v. StockX. On February 4, 2022, Nike filed a trademark infringement lawsuit against StockX, an online resale platform operator. Nike alleges that StockX infringed Nike’s trademark rights by selling NFTs of limited-edition Nikes, which include an image of the sneaker.
Similarly, Rapper Lil Yachty has also entered into NFT litigation. In January 2022, Lil Yachty, whose real name is Miles Parks McCollum, filed a lawsuit in a California federal court claiming that an NFT seller, Opulous, committed trademark infringement for its use of his name and likeness to raise over $6.5 million in venture capital funds. According to Lil Yachty, Opulous launched an advertising initiative for a “Lil Yachty NFT Collection ‘’ that would grant buyers access to new music from Lil Yachty, featuring images of him. Lil Yachty and Opulous had previously discussed the rapper’s potential involvement in the launch of Opulous for selling music copyright-backed NFTs. Despite the two parties never agreeing with one another, Opulous published a series of press releases and social media posts that prominently feature Lil Yachty’s images. As can be seen in Lil Yachty’s complaint, Defendants utilized Plaintiff’s name, trademark, and photography, all without Plaintiff’s consent. That the Defendants collectively and maliciously used the alleged affiliation and involvement of Plaintiff as their flagship artist partnership to successfully raise substantial capital funds (represented as over $6.5 million), though they never remitted any monies to Plaintiff. Lil Yachty has sought damages, injunctive relief to stop Opulous from continuing their use of his name and image, and disgorgement of Opulous’s profits.
And it’s a wrap
Obviously, there is a considerable amount of NFT cases brewing. These cases have great potential to set legal precedents concerning NFTs, creative freedom, ownership, and intellectual property. For now, minting an NFT of someone else’s copyrighted work, without due consent, could land you in trouble. But for owners tying the asset to an NFT, solely for the purpose of transferring ownership, legal consequences may differ. Here, could copyright be a concern, as the art is not being used? Well that is a blog for another day.
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