Non-fungible Tokens and Copyright Law: Burgeoning Legal Issues

Non-fungible token creators and users face several problems in effectively identifying and transferring rights in art via NFT. Specifically, users have little to no assurance that the underlying copyright in the art they are purchasing was properly licensed by or assigned to the person minting the NFT, and the seller may be anonymous or judgment proof. Sellers likewise rarely define the rights that they are transferring to NFT purchasers and the concept of “purchase” is at odds with a typical copyright “license.” Even where transferred rights are well defined, the original NFT creator may not have privity, much less a written agreement, with downstream purchasers. Are there potential fair use defenses? What are the novel copyright concerns raised through the use of decentralized autonomous organizations “DAOs” and generative or “AI” art used in the Web3 space?

Attorneys who practice in copyright law and represent clients in the Non-fungible token (“NFT”) environment are encouraged to attend this cutting-edge program. This course will provide a working understanding of the technology enabling NFT-mediated art necessary to understand key legal copyright concerns.

Learning Objectives:

• Explain the components of a Non-fungible Token (NFT) and how associated audiovisual material is managed
• Name challenges in effectively transferring rights via NFTs
• Investigate the Digital Millennium Copyright Act (DMCA), determine when (and whom) to issue a DMCA takedown notice and how a takedown notice can effectively be responded to
• Detail potential parties in future Web3 copyright infringement actions and likely affirmative and other defenses
• Survey pending litigation