Stuart Levi, co-head of the Technology Transaction and Intellectual Property Group at Skadden Arps, and Marta Belcher, general counsel and Head of Policy at Protocol Labs, break down the legal issues surrounding NFTs specifically in the context of Yuga Labs’ recent purchase of CryptoPunks and Meebits IP rights. Show highlights:
- the definitions and differences between copyrights, trademarks, and rights of publicity (name, image, likeness)
- how NFT projects have evolved in the past 12-18 months and what that means for the rights of NFT holders
- why NBA Top Shot’s licensing model is the best model for famous brands entering the NFT space
- how the popularity of PFPs and the open-source ethos of crypto has led to confusion regarding the commercial rights of NFT holders
- what you are getting when you buy an NFT (hint, it’s not copyright)
- the misconceptions surrounding Yuga Labs’ acquisition of Crypto Punks and Meebits
- why Bored Ape Yacht Club NFT holders most likely cannot use the Bored Ape Yacht Club brand or logo
- what issues web3 projects face in getting NFT holders to accept terms and conditions
- why web3 projects should protect their trademark
- what a Creative Commons license is, and how it can be used in the NFT space
- what sort of licenses exist in the NFT space
- why secondary sales and transfers of NFTs pose such massive problems for copyright and trademark owners
- how marketplaces are handling terms and conditions
- what NFT projects can do to help the transfer of copyrights and trademarks
Announcing The Cryptopians Book Clubs!
On April 26th, I will be selling NFT tickets to five 90-minute virtual book clubs in which 22 people can discuss “The Cryptopians” with me and with each other — without worrying about spoilers! Two of the book clubs will also feature special guests.
The sale will go live on Tuesday, April 26, at 1pm ET/10am PT, and tickets will be $100 each. (The sale will be on Bitski, but the NFTs will not be visible until the sale goes live on the 26th): https://www.bitski.com/@laurashin/created
Here is the schedule:
- Monday May 2, at 8pm ET/5pm PT with Laura Shin
- Tuesday, May 3, at 7pm CET/1pm ET/10am PT with guests Christoph Jentzsch, Lefteris Karapetsas, and Griff Green
- Thursday, May 5, at 6pm CET/12pm ET/9am PT with Laura Shin
- Monday, May 9, at 6pm CET/12pm ET/9am PT with guest Andrey Ternovskiy
- Tuesday, May 10, at 9pm CET/3pm ET/12pm PT with Laura Shin
If you’d like to participate, be sure to mark your calendars for the sale time on April 26th. Hope to see you in one of the book clubs!
Thank you to our sponsors!
Beefy Finance: https://beefy.finance
Cross River Bank: https://crossriver.com/crypto
Content on NFT IP/Legal Issues
- Josh Durham on IP rights and NFTs
- Punk 6529 on CryptoPunks and Yuga Labs
- Decrypt on stolen IP
- Why IP rights are meaningless
- IP questions from DC Investor
- The Copyright NFT bible
- What Exactly Do You Get When You Buy an NFT? Three Lawyers Discuss
Difference between copyright and trademark
Hi, all. Today I’m announcing that I’ll be hosting a series of book clubs in which we can discuss my book, The Cryptopians, with me and a group of 22 people. Starting on April 26, we will sell NFT tickets to five book clubs, all of which will take place on my Discord, and they’ll be from May 2 to May 10. Two of the book clubs will feature special guests. One will feature Christoph Jentzsch, Griff Green, and Lefteris Karapetsas, who are all involved in the Dow, and the other will feature Andrey Ternovskiy of Chatroulette!. The sale of the NFT tickets will take place on Bitski. You can see my profile there now at bitski.com/@Laurashin. The NFT tickets will not be visible until the sale goes live on April 26 at 1 p.m. Eastern, but bookmark that page now if you’re interested in participating in one of these book clubs. The dates and times are in the show notes. They’ll all be 90 minutes, and I think it’ll be a really fun and easy way to chat with me and with others who’ve read the book in a way where you don’t have to worry about spoilers. So, all the details will also be in the daily newsletter if you’re signed up for that, and if you’re not, then go to unchainedpodcast.com right now to sign up, and now, onto the show.
Hi, everyone. Welcome to Unchained, your no-hype resource for all things crypto. I’m your host, Laura Shin, author of The Cryptopians. I started covering crypto six years ago, and as a senior editor at Forbes, was the first mainstream media reporter to cover cryptocurrency full-time. This is the April 12, 2022 episode of Unchained.
This episode of Unchained is brought to you by Beefy Finance, the multi-chain yield optimizer. Beefy is the easiest way to earn more from your crypto. Deposit funds into Beefy’s secure vault to auto-compound yields across 12 blockchains. Got crypto? Choose Beefy.
Welcome to a new world of crypto-friendly banking with Cross River Bank. Request your fiat on/offramp solution now at CrossRiver.com/crypto.
Galaxis. Create unstoppable communities by issuing NFTs with interactive, dynamic utility traits that allow any creator to engage with, reward, and monetize their following.
Buy, earn, and spend crypto on the Crypto.com app. New users can enjoy zero credit card fees on crypto purchases in the first 30 days. Download the Crypto.com app and get 25 dollars with the code Laura. Link in the description.
Today’s topic is the intellectual property rights of NFTs, and what the owners of Bored Apes, CryptoPunks, Meebits, and other NFTs should know. Here to discuss are Stuart Levi, Partner and Co-Head of the Technology Transaction and Intellectual Property Group at Skadden Arps, and Marta Belcher, General Counsel at Protocol Labs and Chair of the Filecoin Foundation. Welcome, Stuart and Marta.
Great to be here.
So, let’s just start talking about how Yuga Labs, the creators of Bored Apes, recently acquired CryptoPunks and Meebits from their creators, Larva Labs. At that time, it was really big news and seen as a victory for the model in which the creators give some of the intellectual property rights to the buyers of those NFTs. However, Stuart, you reached out to me to say that you felt that there are actually a lot of misconceptions over what rights the owners of these NFTs actually have. So, that’s the premise for the show, but before we actually dive into that story and this full topic, let’s just make sure everybody understands all the definitions. So, let’s just go over terms like trademark and copyright, commercial rights, et cetera. So, just between the two of you, why don’t you just explain what are the different kinds of intellectual property rights that are or could be associated with NFTs?
Marta, do you want to take that, or do you want me to?
You can go first, and then I will follow up on that.
Okay. So, there are a couple of different rights that percolate around NFTs. So, the most commonly discussed and probably the most important prevalent is copyright. Copyright is a body of law that protects works of authorship. It includes visual images, moving images, text, music, content like that. So, that’s one category. So, you can imagine how in an NFT piece of digital art, piece of music, a video clip, all comes under the rubric of copyright law, but closely related to that in the world of intellectual property and NFTs is trademarks, and trademarks is a, as its name implies, sort of a mark that indicates a source of origin. So, Nike, a well-known trademark. You see a brand name and you associate it with the originator of those goods or services. So, that’s trademark law. The other piece that doesn’t come up with every NFT but is important to keep in mind, particularly if you’re doing anything with celebrities or athletes or personalities, is rights of publicity that attach to that. Just being able to use someone’s name, image, likeness is a right that you need to get, but I think in the main when we talk about NFTs, we’re mostly talking about copyrights, and as we’ll talk about today, trademark rights as well.
And I would add to that…a couple things I would add to that. I thought that was exactly right, Stu, and I think a couple things that are of interest to NFT creators and NFT holders. One thing is that you get a copyright in a work automatically. So, if you scribble down a doodle, you will automatically have a copyright in that work. You can go register a copyright and you’ll get some additional sort of protections, but anyone who’s created a work will automatically have a copyright in that work, and those rights, that copyright and that work, those rights can be transferred to others. So, if you have a copyright in a work, you can, using a contract, transfer those intellectual property rights to someone else, or you can also license that work to others. So, what you can do is you can say, well, you know, so-and-so can use my work in the following way, but not this other way, and that’s all governed by contract law. So, that’s really just whatever you write, you and the other party agree to. You can transfer rights or give others rights in your work that way, and that’s a really important piece that comes into play when you’re thinking about NFTs and copyright.
Okay. So, now let’s talk about the backstory to the recent Bored Ape / Yuga Lab news which sparked this episode. Before the most recent acquisition, we had kind of seen this evolution in the way NFTs and their intellectual property rights have evolved with, you know, starting with NBA Top Shot and like kind of some of these other projects that have come out. So, why don’t you just talk about that evolution and how different NFT projects have treated this issue?
Yeah, Laura. It’s a great question. So, I feel sometimes if you’re at a law firm, you’re almost like the canary in the coal mine because you see, you know, everything that people are thinking about, projects that are happening from a lot of different vantage points, a lot of different kinds of clients. So, we see a wide range of different projects, but what’s been interesting, over the past, you know, call it year to 18 months or so, which I feel like is in NFT time but feels like, you know, decades or much longer, but it’s been really not that long, there’s been this really interesting evolution in how people perceive what commercial rights they should get, or intellectual property rights, in connection with the NFTs they purchase.
So, one stream is the stream that’s always existed, which is you don’t get any of those rights. You just get the personal enjoyment right, but there’s definitely this stream that’s evolved of providing the owner of the NFT with some type of commercial rights, and where it gets really tricky, and this is, you know, part what spurred this podcast, is people lump together…people look at it as very binary. I either have no commercial rights, or I can do whatever I want, and the second category is dramatically more complicated than sometimes people who describe this space talk about. So, that can range from you’ve got full commercial rights, but no right to use the name of the project when you use your NFT. So, we’ll get back to Bored Apes in a second, but you know, that’s a model. So, I can put the picture of the NFT on a t-shirt, but I can’t put the name of the NFT project on the t-shirt.
Some commercial rights limit how much you can earn on an NFT, and I think Punk 6529 when he was on your podcast made the really good point that it’s not even clear how that model works. Unless you’re really just doing something for a few friends, you know, no one sets out to build a commercial enterprise thinking, I’m only going to make this much money, and even if you had that in mind, what if all of a sudden, I don’t know, you’re doing notepads, or you know, physical trading cards, and all of a sudden it becomes the hottest thing. You know, how do you shut it off because your commercial rights only allow you to make a certain amount of money?
But that’s an interesting issue in and of itself, but then there’s some that just limit what kind of commercial rights you have. Maybe it’s physical merchandise, but you can’t do an animated series, or maybe you can do certain kinds of physical works, physical objects, but not others. So, the commercial rights are really complicated and really get down into what that license grant is within the commercial rights, and then we have to get into the whole area of where does that license even appear, and how does it even apply to you? But at the main, there’s this evolution, again, from no commercial rights to commercial rights, but what that means is really complicated.
And Marta, did you want to add anything on that?
Sure. Yeah. Absolutely. So, I think just to really underscore what Stu said there, there’s really a lot of misunderstanding about what you’re buying when you’re buying an NFT, and really the headline here is that ownership of an NFT is not the same thing as ownership of the copyright in that NFT. So, you certainly can transfer ownership of the copyright to an image along with an NFT, but you don’t necessarily need to do so. Similarly, when you buy a copy of a book, that doesn’t necessarily mean that you’ve gotten the copyright to the book itself, right, and so, what you’re buying when you buy an NFT is sort of to be, to put it pretty simply, is that you’re being publicly associated with a particular file that’s reported on a particular ledger, right, and so, along with that, as Stu was saying, you can get certain IP rights, and that’s really entirely dependent on the contract that goes along with that NFT. So, often that will be in the terms and conditions of the platform where you actually bought the NFT.
So, I guess to put it another way, when you buy an NFT, you’re getting a token that shows ownership of a digital asset that’s reported on a ledger, and then you’re also getting any other rights that are explicitly given to you in the terms and conditions of that platform or in what other contract you effectively have entered into with the creator of the image that is associated with an NFT. So, if the terms and conditions of a platform say that the seller transfers the copyright to a particular image to the buyer, and you know, if the buyer and the seller agree to those terms and conditions, then the copyright will be transferred to the buyer, but if the terms and conditions say that the buyer gets a license to display the image only in certain circumstances, but the copyright in that image doesn’t transfer to the buyer, then that’s what the buyer gets, and that’s what Stu’s talking about with all of these different ways that you can be licensed to, you know, all these different things that you can be licensed to do. It’s not just either you have the copyright transferred to you or you don’t. As Stu’s saying, it’s not binary. You also could have very specific rights that are laid out in a contract.
So, just to give you an example. Laura, you asked about sort of how this has evolved over time, right, and so, you know, thinking back to some of the earliest super popular NFTs that were I think in many ways ahead of their time, CryptoKitties, right? So, CryptoKitties, if you buy a particular CryptoKitty, you don’t actually get the copyright to…you don’t own the copyright in that image of that CryptoKitty, but you actually do get a license to use it in certain ways. So, you can display it on social media, and you can even use it in certain commercial ways, but only for commercial purposes that net up to 100,000 dollars per year, and so, you can see it’s highly specific what rights you’re getting, and it’s entirely dependent on the contract, and I think that gets particularly important when you’re talking about things like, you know, NBA Top Shots, right, which was extremely popular in the middle of last year is if you’re the NBA, you want to make sure that when you’re selling an NFT of a particular moment, that doesn’t mean that you’re going to be giving the rights to someone to be able to advertise or market or sell things using that, you know, that moment of NBA history, and so, in fact, when Dapper Labs created NBA Top Shots, they limited that ability, and so, just to add on here, the headline here really is transferring ownership of an NFT is not the same thing as transferring ownership to any intellectual property rights, and that can happen separately and is entirely governed by what you want to put in the contract.
So, now let’s talk about the recent news, the acquisition by Yuga Labs of CryptoPunks and Meebits. So, what are some of the misconceptions that you’ve heard that some of either the owners of these NFTs or just other people commenting on this acquisition have, and then how does that compare to the reality?
Sure. So, this is where a couple of different issues sort of come together, and it’s really sort of reaction to…you know, people say, well, you can do anything you, you know, Bored Apes, you can do anything you want to without exception when you own one, and I will say that Yuga Labs announced as part of the acquisition that they were going to grant everyone the same rights, but they also said they’re working with their legal teams to draft new terms and conditions and are going to share those with the community. So, what I mean by a couple of different issues coming together.
So, one, and I alluded to this earlier, is that if you go to the Bored Ape Yacht Club website, scroll to the bottom, there’s the Bored Ape Yacht Club terms and conditions, and that grants you full commercial rights, but is silent on whether you have any trademark rights. Interestingly and importantly to remember, you know, this is what Marta was also alluding to, if you don’t get rights granted to you, and this is true for copyrights and true for trademarks, you don’t have them. So, the default is you get nothing unless someone explicitly gives them to you. So, saying that I have the commercial rights to use the artwork in Bored Apes, or to a lot of NFT projects that do the same thing, means I now have the copyright right to do that, and Yuga Labs in the initial Bored Apes terms and conditions very broad about the copyright piece, all good so far.
In the Mutant Ape Yacht Club terms and conditions, which is right underneath those terms and conditions, same commercial rights granted, look identical, but there’s an extra paragraph that says, you have the right to your art. Enjoy it. Commercialize it. We’re not going to stop you from doing that, but you don’t have the right to use any of our marks, including Bored Ape Yacht Club, Mutant Ape Yacht Club, Bored Ape Kennel Club. You have no rights to any of those trademarks. So, that means, it would seem, that I can use my Bored Apes. I can get together with four other Bored Ape owners. We could put all four of our apes on a sweatshirt. There’s a lot of different things that we could do, but there’s probably good argument that I don’t have the rights, and again, we’ll see what happens with the new terms and conditions they might do, that I might not have the right to use any of those brand names, which could impact a lot the value of what I’m offering out into the marketplace. Like, part of the appeal might be that it says, you know, BAYC across the top and it’s got some cool artwork on it. So, that remains to be seen, but at least that’s an unknown out there.
So, that’s one issue, but the other issue is, and this is the one, you know, we as lawyers think about all the time, and we’ll talk about secondary purchasers in a moment because it only gets worse there, is, okay, well, how did those rights actually get conveyed to me or not? And in this area of the law, as opposed to some other areas where, you know, we often feel as lawyers it’s square peg, round hole to try to apply legal principles to the world of Web3, here the law pretty much matches up in works, which is there’s a lot of case law that talks about how do you get someone in an online context to agree to terms and conditions? And there are courts that have said, if I click on something that says I agree, you know, I’ve read the terms and conditions, click I agree, courts have said pretty consistently the counterparty, the person using the site, has agreed to their terms. They can’t say, oh, I clicked on I agree, but I didn’t really agree. You’re pretty much agreeing to those terms, but if I just put the terms and conditions somewhere on the website and don’t say you have to click on them. I don’t even say by using this website, you’ve agreed to these terms, and it’s not even clear if you do that that that’s good enough, but just sticking terms somewhere, there’s a lot of cases that say you haven’t created a binding agreement because the user might say, well, wait a second. I didn’t know I had to scroll all the way down to the bottom here with all like the fine print, you know, that has things about applying for a job as, you know, some other information about the company and realize, wait, buried in there is like a terms and conditions thing I’m supposed to look at, and that’s going to limit, you know, what I can and can’t do. So, that’s one issue. Again, we’re just talking now about primary purchasers. We’ll talk about secondary purchasers in a few minutes.
So, that’s one area that commercial rights are granted, not so clear in all those cases you’ve created a binding agreement with the initial purchaser, but it gets worse, again, if you’re a lawyer, an IP lawyer. Some of these projects grant you the rights on Discord or Twitter. Like, they literally will post out and say, hey, everybody. You’ve got commercial rights to do what you want to, you know, with our property. You could argue, yeah, well, they’re not going to come after me if they’ve said that. So, maybe, but you definitely haven’t created any sort of, you know, binding legal agreement, and again, we’ll talk about in a little bit what the impact of that is, but you also might not know who posted that. We’ve definitely seen projects out there where someone posted that on Discord or on Twitter and had no authority within the company to have said that. You know, they themselves didn’t have the rights. They themselves maybe weren’t even an employee. They’re like a mod and they heard that you get commercial rights, and now they’ve said you get commercial rights. So, there’s a lot of ways that people feel that commercial rights have been conveyed, but it’s being done in a very backwards way for something that conceivably will be incredibly important if people look to commercialize the rights they’re getting in the future. Like, it’s hanging by a very thin thread in a lot of cases, and in some cases maybe no thread at all.
So, just to be clear. So, what can the owners of Bored Apes, CryptoPunks, and Meebits NFTs actually do?
So, it would seem, and I think there’s some ambiguity here because I think, again, why they’re probably looking to clear it up a little bit, the commercial rights themselves I think you could argue are pretty broadly stated. I don’t think there’s any dispute about that, but I think it’s far less clear whether you can use, you know, as we sit here right now, the trademarks and names and logos of the Bored Ape, you know, the Yuga family of marks. I think there’s a reasonable argument that you can’t, but again, it’s pretty unclear just the way it’s been, you know, presented. Again, it’s just in the, as of now, in the Mutant Ape Yacht Club terms. It’s just, you know, a link at the bottom. We’ll talk about what all that means for secondary purchasers, but I think that’s the big uncertainty out there. When people say you can do whatever you want to, well, maybe, but you know, maybe with some limits.
So, you can do whatever you want, but you can’t use the name Bored Apes. So, you could like have a line of like t-shirts or backpacks, or I don’t know, snack pouches or whatever using the image of your Bored Ape or your CryptoPunk, but you cannot call it a Bored Ape or a CryptoPunk.
Yeah. So, I’ll put one tweak to that because there’s an exception to that, but it would probably not apply to the way, you know, you’d want to commercialize it, and what I mean by that is if I’ve purchased a Bored Ape and I want to talk about that Bored Ape, I can use that name in a descriptive, sort of what trademark lawyers would call a non-trademark sense. In other words, I’m not trying to sort of glom on to the value and commercial rights of the Bored Ape Yacht Club and Yuga Labs. I’m just describing my Bored Ape. I’m not required to say, you know, my Ape that is an NFT that’s really popular that looks disinterested, and you know, you connect the dots and realize, oh, you mean Bored Ape Yacht Club. I can describe what it is, but the idea of let’s say, you know, doing a set of sweatshirts and calling it the Bored Ape Yacht Club sweatshirt collection probably, again, as of now, this is where I think it’s unclear, that there’s a good argument that you couldn’t do.
I would add, I think Stu’s like made I think several really important points here. I think one really important point that Stu’s made is that there’s a total distinction between copyright and trademark rights, and those are things that I think as companies you think about really differently. You know, if you’re a company…you know, so for example, everything that we do is open source, and we are deeply committed to making sure that we’re open sourcing, you know, all of our code, and I think for me personally, I’m very dedicated…I’m also Special Counsel of the Electronic Frontier Foundation, and very committed to the sort of copyleft world, thinking about making things open, freely available, part of the public domain available for others to use, right, and that’s really important in a copyright context for me.
When it comes to trademarks, it’s a little bit different. Trademarks are not about protecting the artist or the creator. What trademarks are about is protecting consumers. Trademarks are about when a consumer buys a product and it’s labeled with Clorox, they know it’s from Clorox, right, and they are, you know, they are able to sort of associate the qualities of a Clorox product with this thing, right, and so, when it comes to trademark rights, even as a sort of open source ethos, there actually is an important place for trademark rights and for trademarks to be protected to make sure that people understand that when someone says that something originates in a particular place, it actually originates from there, and that’s important for consumer protection, and so, the fact that a particular NFT platform has super open rights with regards to what you can do when you buy an NFT and you have gotten rights, you know, you’ve contractually had rights given to you about copyright, it’s just totally distinct from what you can do with the trademark for that company.
Similarly, in the open source context, you’ll often have open source projects that, again, everything is open source. They’ve open sourced all of their code. The open source is at the core of the ethos of what they do, but they’ll say about their trademark, this trademark needs to represent that this is the authentic code from this authentic project, and so, if you’re going to take this code and use it in a different way, you can use this trademark only to refer to sort of the authentic project. So, I think all of that is just to say that I think what Stu’s saying is really important around the distinction between how a copyright is used and how a trademark is used.
Yeah. That’s super fascinating. I find that distinction actually really helpful that you described. So, one other thing that Stu mentioned before we started recording was that there are a bunch of NFT creators that are trying to do the impossible, where they’ll say that they hold the trademark, but at the same time, they also say that people in their decentralized community can use that trademark. So, Stuart, describe what you’re seeing there and what the issue is with that.
Yeah. So, I would say it’s not limited to the NFT world. I’d say it’s an issue that is endemic in the Web3 world today, which is that there’s, from an intellectual property perspective, a pretty big tension point between decentralized projects where the creators want to hold on and control the brand name and the trademark, but at the same time, want to freely allow anyone who wants to to use it in the ethos of Web3, and here’s the tension point, and it goes exactly to what Marta was just saying, the whole idea behind trademark law is that someone sees the mark and can associate with that a certain quality of good and service, high end, low end, whatever it might be. They see a trademark, I’m protected because I know that brand. Because of that, trademark law requires you to go out there and have some sort of quality control and policing of your brand in order that the consumer is protected, and you know, this whole scheme kind of works.
If I have a trademark and say anyone can use it, I run the very significant risk that I’ve now lost my trademark protection because I’m not protecting it as my own mark. I’m letting everyone use it. So, there’s no quality control. There’s no policing of the mark. There’s nothing. Everyone can use it, which would be fine if you want to give up your trademark rights and just say, look, here’s a great name, but we want everyone in the community to be able to use this writ large, that’s fine, but if on the same token you say, but I still kind of want to own the name for, you know, the founder’s group wants to own the name, it’s hard to, really, really hard, and maybe even impossible to balance those two. You have to sort of do one or the other. It doesn’t mean you can’t, you know, broadly allow people to use it, but you still have to have some, again, quality control, some limitations so you can protect the name, again, if you want to continue to own it as part of the developer group, founder group, creators, et cetera.
So, in a moment we’ll talk about some potential solutions to these issues, as well as look into how the marketplaces are handling them, but first a quick word from the sponsors who make this show possible.
It’s becoming clear that utility is the future of NFT technology, and no launch platform does utility better than Galaxis. Anyone with a community can now engage with, reward, and monetize their following by issuing an NFT collection with dynamic utility traits. These traits can be customized to the needs of a particular community and change over time, allowing the creator to sustain a prolonged relationship with their most valuable followers. Visit Galaxis.xyz to learn more.
Building the next big thing in crypto? Cross River has your back. Whether you are a crypto exchange, NFT marketplace, or wallet, Cross River’s integrated API-based platform provides the payment solutions you need to grow. Cross River is powering the future of financial services. A CryptoFin Industry Award winner and an early partner for companies like Coinbase, Cross River’s tech stack supports crypto partners and enables real-time money movement for consumers. Welcome to a new world of crypto-friendly banking. Request your fiat on/offramp solution now at CrossRiver.com/crypto.
Finance is changing. Strategies are changing. Holding is changing. Beefy Finance, the multi-chain yield optimizer, allows you to maximize passive income while you sleep. Simply deposit your crypto into Beefy’s secure, industry-leading auto-compounding vaults to put your funds to work. Each one of Beefy’s 740 vaults automatically reinvests the interest gained on your crypto deposits earning you more while saving you time and fees. Beefy’s strategies create bank-busting APYs with zero percent deposit fees at the click of a button. Join 1.4 billion dollars of investments and understand why so many users trust Beefy with their financial independence. Visit Beefy.finance and take control of your financial future.
Join over 10 million people using Crypto.com, the easiest place to buy, earn, and spend over 150 cryptocurrencies. New users enjoy zero credit card fees on crypto purchases in their first 30 days. With Crypto.com Earn, you can get industry-leading interest rates of up to 8.5 percent on over 40 coins, including Bitcoin, and earn up to 14 percent on stablecoins. With the Crypto.com Visa card, you can spend your crypto anywhere. Enjoy up to 8 percent cash back instantly, plus 100 percent rebates for your Netflix, Spotify, and Amazon Prime subscriptions, and zero annual fees. Download the Crypto.com app and get 25 dollars with the code Laura. Link in the description.
Back to my conversation with Marta and Stuart. So, I know a lot of people have actually brought up the Creative Commons license as a potential good option here in the NFT space. Why is that? What is it exactly? What problems would it address, and how might it resolve some of these issues?
Yeah. So, you know, I think Creative Commons was such a huge step forward for copyright in general. What Creative Commons does is it allows you to basically take any work that you’ve created, and again, as I mentioned earlier, you know, any time you even scribble down a doodle, you automatically get a copyright in that work as the creator of that work, and so, if you want to be able to share that work broadly with the world and you want other people to be able to do things with that work, you have to contractually somehow give them the right to do that, and you have to make it clear what exactly it is that they can do with the work, right? So, you may create a drawing and you may genuinely want people to be able to use it in their films, or you may genuinely want people to be able to, you know, remix it with other things. You may genuinely want people to use it in a variety of ways, or for example, you might take a photograph and really want that news organizations are able to use it. So, how did this happen sort of pre-Creative Commons or in a world without Creative Commons? It has to happen on kind of an individual-by-individual basis. Really hyper-inefficient, and what Creative Commons lets you do is have this sort of standard set of licenses that sort of you can very easily associate with the particular work.
So, for example, when I write, you know, papers that I want to put out there, I will just put a little stamp on it that says, CC, Creative Commons, and then the specific Creative Commons license that I want to be able to use for this particular work, and so, Creative Commons, you can go to their website and you can see they have these standardized licenses, and then…so, just to give you one example. One is CC BY. CC BY is basically you’re licensing this work in a particular way, but they need to give you attribution. So, anyone can use, let’s say I took a photograph, anyone can use this photograph as long as they give me attribution as the photographer, and there are a bunch of these standardized licenses and you can just pick the standardized license you want to use and clearly label your work as CC BY, or you know, some other license that you want to use, and then people know what they can do with that work. They know that they can take it and as long as, you know, they’ve given you attribution if you’re using CC BY, then they can actually use the work in the ways that the license says, and it’s this really lovely human…they’re really lovely human readable versions of the contracts, and so, this was a really important step forward in the sort of world of I think ensuring that creativity can be shared and that, you know, when you’re creating these works, others can use them in a way that’s really easy.
So, one of the things that’s been really, for me, interesting in the NFT space, from the beginning I’ve been, you know, I’ve seen this idea that when you transfer ownership of an NFT, right, like let’s say I’ve created an image and I create an NFT of it, you don’t have to transfer the intellectual property rights to that particular image, right, and you can retain them, and what that means is in addition to being able to retain them, you can license them any way you want, which includes potentially licensing it under Creative Commons. So, it’s this really lovely thing because what that enables is if you’re an artist, you can sell an NFT of your work without selling the intellectual property rights, and you can make money from it, and then in addition to that, you can Creative Commons license your work and it will be out there licensed in a way where others can use it and sort of part of, you know, part of the Creative Commons, right, and so, I think that Creative Commons has been really underutilized in this space, and you know, what we’ve been seeing is not necessarily a lot of people using Creative Commons or other similar standardized licenses. What we’ve been seeing is, you know, what we were describing earlier, which is typically what happens with NFTs is it’s really all governed by the terms and conditions of that particular platform, the particular platform where you’re buying and selling is, you know, will have some sort of standard of what the buyer is selling and what the seller is buying, and that’s really what happens, and I really have been advocating for let’s use Creative Commons. We don’t need to reinvent the wheel here, and if you’re a creator, how cool that you can sell an NFT, make money, and at the same time, contribute your work in a, you know, to the world in an open source way.
Right. So, you know, but I want to just add one point to that. Hate to come back to trademark law yet again, but the interesting thing is that even the Creative Commons license, which was really designed to put sort of copyrights into the public domain, says within the Creative Commons license itself, this does not give you any trademark rights or impact any trademark rights that people have, and usually when people think of creative works, there’s not like a trademark attached to it, like a brand. You know, it’s a piece of art. It’s a piece of music, but with NFTs, as we’ve seen, a lot of them have brands attached to them, trademarks attached to them. So, if you see a commercial project which says it’s in the public domain, see Creative Commons license, you know, click here to the see the license, and now you want to commercialize it, you’re left in this limbo world of, yeah, but can I use the name of the project as well, and how lucky do I feel building potentially a big commercial enterprise to commercialize my NFT sort of, you know, worry as I go to sleep at night, but could I use the name of the project the way I’ve used it? I never really got the license to do that.
And so, Marta did bring up how currently it’s all governed by the marketplaces, but I was wondering, you’ve been suggesting Creative Commons, have other people been interested in that? Have you seen any NFT projects go that way or at least discuss it?
So, what I’ve seen is there have been a bunch of different efforts at creating a sort of standardized NFT license. So, sort of like recreating the wheel here where they’re sort of trying to create an NFT specific almost version of Creative Commons, and so, there have been a bunch of these efforts. You know, some examples, Dapper Labs created The NFT License. There was a Rarible NFT license. There was a project called the NFT License Project. There is a license agreement called the NFT Art Licensing Agreement. So, there have been…
And are these like…?
None of these are from Creative Commons, no. These are all basically attempts at solving the same problem that Creative Commons is trying to solve, right? So, you have this problem of we want a really easy way to convey a set of rights, and so, there have been a bunch of people in the NFT space, you know, either the platforms themselves or other stakeholders who basically are saying, we need a standardized license for NFTs, right, that we can use, and so, the ones I just listed are all sort of platforms for stakeholders who are trying to create standardized licenses for NFTs that can be used, and you know, I think the vision there is very similar to the Creative Commons vision, which is this idea that there’s some standard license, everyone uses it. There may be particular different types of licenses.
I will say one thing that I think has been underappreciated about…so, you know, I think all of these are awesome efforts, all of these efforts to create standardized licenses for NFTs will go a really long way in making sure that there’s a lot less confusion in this space in the future if any of these get sort of broadly adopted. One thing I think these licenses have not really thought through fully is how important it is for a license to have many different options and to be kind of modular, right? So, the thing that’s so cool about Creative Commons is it’s not like there’s one Creative Commons license and you’re out there and you say, I’m licensing this under Creative Commons period, end stop, and that, you know, that’s just the license. There are many Creative Commons licenses, and when you license a work, you say, I am licensing this under this particular Creative Commons license. So, the example I gave was CC BY. I can just stick licensed under CC BY, you know, or just there’s a little Creative Commons image I could stick on my work, and everyone knows, okay, you’re using this specific attribution license, and they can go to the Creative Commons website and see exactly what that license is, and so, that I think is what’s been missing, or something that I think the licenses in this space should really try to adopt in the future if they’re going to be widely adopted and used.
So, Laura, I think that brings us to probably the biggest issue that’s lurking out in the world of NFTs and contractual rights today, which is so far, what we’ve been focusing on is the primary purchaser. So, I go…there’s a drop. I go. I go to a website. I buy the NFT. Maybe I clicked on I agree to these terms and conditions. You know, they’re put in front of my face in order to be able to mint or secure my NFT. Now, the NFT enters the resale market, and the big, big missing link in NFTs today and something that, you know, every major rights holder is talking about is how does that initial license grant travel with the NFT? And today, you know, using terminology our engineering friends would use, every solution is suboptimal at best. So, to talk through some of the solutions out there we’re seeing, and again, none of these really, really work.
So, one solution is, and you see some of the major rights holders with iconic incredibly value intellectual property doing, is their NFTs are only available within a walled garden. The NFT cannot be moved to your own custodial wallet, non-custodial wallet, off-chain anywhere else because, and this is one of the principle reasons they’re doing this, they are very concerned about this issue that they never want their IP out there without someone having seen and agreed to a license, and so, they know if they’re within a walled garden ecosystem, the buyers and sellers had to click on I agree to these license terms when they get the NFT. It’s definitely the safest approach one could argue, but that’s not consistent with the Web3 ethos because now we’ve just created these centralized little islands of where you can get NFTs, but the fact that they are so prevalent I think shows you, you know, why that’s such a big issue. So, that’s solution one.
Solution two is you go to the different marketplaces and say, look, you can list my NFT, but if you’re going to list my NFT, you need to provide some sort of link to my license terms so that the downstream purchasers in your marketplace are presented with these. So, two problems with that. Again, everything’s suboptimal. It means going into every marketplace. You’ll never get to all of them because if, you know, your NFT goes from wallet to wallet to wallet, you’ll always be chasing it, and a lot of these marketplaces are not set up to do customized sort of treatment that way. So, again, I could easily buy an NFT and not realize that there’s terms and conditions out there.
Another solution we’ve heard is we’ll put the link to the terms and conditions in the metadata of the NFT so it’s there. So, when I buy the NFT, the metadata said, hey, when you bought this NFT, it’s subject to these terms and conditions. That sounds sort of interesting in theory, but no one’s looking at the metadata. Like, a lot of engineers I’m sure even buying NFTs are not going to study the metadata, and remember those, you know, cases I talked about from earlier, courts say if you’re going to get someone to agree to something, you’ve got to put it in front of them, have a reasonable likelihood they’ve seen it, and that they’ve somehow manifested assent to that. The fact that it’s buried somewhere in the metadata, unlikely to solve the problem. Same issue we’ve heard that some people want to put the entire license terms in the metadata. Let’s put aside the logistics of doing that, the cost of doing that, it’s the same thing. No one’s, you know, going to be looking at the metadata in order to do that.
Another solution out there, again, all these sort of suboptimal, is most marketplaces do suck in some of the metadata when they list an NFT, so you could have a solution where you put the language that says, I agree to these terms and conditions, click here to see them, and that will always get sucked into the presentation page for the NFT project, and that could work except, A, you know, every marketplace works a little bit differently, pulls in different metadata. Again, you have the issue of having to always chase the, you know, the platforms and the marketplaces to do that.
So, nothing works well, and a lot of people are buying NFTs out there. In fact, almost maybe in just about every case, except these wall gardens, where they’re not seeing the underlying terms and conditions, and just to finish up on one point, so the risk you run is…so, now I want to commercialize my NFT. I go to a streaming service, and I want to do an animated series or something with these NFTs. You know, all of these distributors, licensees, they’re all very big on rights clearance, and they’re going to say to you, okay, so show me where you got the rights to use these NFT characters in this project, and saying, well, okay, when I got the NFT, you know, there was nothing, but there’s a Twitter post that says, all commercial rights are fine, and that’s just not going to do it, you know, in a lot of distribution methods, but finally taking a much more important point, imagine if a NFT tied to a real world experience, and when I bought the NFT, the terms and conditions said, you have to be over 18 to claim it. You can, you know, you have to live in the continental United States, whatever the terms and conditions might be. If that license doesn’t travel and those terms don’t travel with the NFT, the downstream purchaser is buying an NFT not knowing all those terms attached to the NFT they just purchased. So, it’s a huge issue out there. There are definitely people working towards technology solutions, but as we sit here right now, it’s almost like, you know, there’s a missing rail on the track of NFT commercialization, and this is it, and it’s a really big one.
So, I think Stu is touching on two points that are super important and really key to clearing up a lot of the confusion in this space, and I think everything Stu said about this problem of how do you have the rights travel with an NFT from both a licensing legal perspective, but also from a technical perspective, is super, super, super important, stop, and you know, I thought Stu did an awesome job talking through various different ways that you can accomplish that, but really being able to associate the licensing terms directly into a particular work and being able to achieve that is I think absolutely key. One of the things that’s going to make that, from a legal perspective, super easy and lightweight is to have really standardized licenses, right, for it to be really easy to say this is CC BY, right, licensed, and to just be able to put that into the metadata or in some other way, you know, maybe record it on the ledger, right, record that it’s CC BY on the ledger, like but having that quickly accessible standard is going to make this much, much easier.
Just to give you sort of an anecdote on that. So, my boyfriend took a picture when he was in law school of a gavel, and he put it up on Flickr, and he just put this is…you know, Flickr makes it really easy to say, how is this licensed? And he said, it’s CC BY licensed, meaning, you know, it’s a Creative Commons license as long as you give me attribution, and that photo…so, I made the mistake of setting up a Google alert for his name once, and I suddenly just inundated. This photo is all across the web because with his name, because he CC BY licensed it, it was really easy for journalists who are writing a story about some legal thing to go into Flickr and search for things that, you know, check the box, how is this licensed, CC BY licensed, and search for gavel, and this gavel comes up, and it’s on this unbelievable range of stories across the internet of, you know, about legal things. So, the headlines are all like atrocious and like I immediately turned off the Google alert, right, but just sort of giving you an anecdote about why being able to license something in a way that is really clear and is attached to the metadata of a particular, you know, in this case photograph, but any kind of image or file, why that’s so important and why that actually is so enabling, and the other thing that I think Stu said that was really important here is this idea of, okay, if you’re getting an intellectual property right, you know, regardless of what you do with it, you want to know that you really have the rights you think you have, and this is a problem in many ways because, you know, one of them is, okay, well, how do I know that the person who minted the NFT had the rights that they are allegedly giving to me and were authorized to give me the rights that they are allegedly giving to me, right?
And being able to follow that sort of chain of title effectively of the intellectual property as it changes hands and being able to verify like, yes, this person was the creator of the image that was the NFT. Yes, they used this particular license to give it to this person on this platform, and then that person sold it to this person, and being able to see that chain of title is something that’s sort of, you know, one of the things that people talk about as so cool about being able to use blockchains, right, and so, I have a lot of hope that we’re going to be able to figure out technological and legal solutions to make that really clear, but I do think that this is one area…this is another reason that it’s so important that we have these modular and clear licenses, and we don’t have to, every time we see a, you know, chain of title passing hands, we don’t have to literally go read the terms and conditions of each platform where it changed hands to see how those rights changed hands, and frankly, we would be lucky if they’re interoperable, right? So, you know, also a plug for ensuring the interoperability of these standardized licenses so that if you change hands on platform A and then the buyer sells it on platform B that you can follow those rights across platforms. So, why this is so important.
Yeah. I may have been one of those journalists that did such a search that resulted in your boyfriend’s image being used because I have saved on my computer different Creative Commons licenses searches on Flickr and other sites because I used to use these images all the time, but one thing I wanted ask. So, you know, we’ve been talking about how the terms and conditions of the different marketplaces are really important. At the moment, do you see that the platforms are trying to converge on something that’s standardized, or is it just all over the map? Like, I don’t know if you want to talk about what you’re seeing on like OpenSea or SuperRare or any of these platforms, but like do you feel they’re kind of trying to get things in a, you know, bring things to a better place, or do you just see that there’s not much movement?
So, it’s a great question. I think it’s really important to distinguish between the terms and conditions of the platform and the terms and conditions of the project, NFTs being sold on the platform. So, all the platforms have their own terms and conditions, but they govern your interaction with that platform. So, OpenSea has the OpenSea terms and conditions, but that relates to buying and selling on OpenSea and what happens if there’s an issue, and you know, what you can and can’t do. That’s separate and apart from the terms and conditions that an individual NFT project might have, which says, for example, you can sell commercial merchandise but only up 100,000 dollars. How do I even know that, you know, if I’m buying something on OpenSea? In fact, in our group we did this study where we looked at a variety of different…I feel like we’ve done this deep dive into commercial rights on a lot of different popular NFT projects, and at least for the ones we looked at, not a single one when you go to OpenSea to buy it, and it’s not the fault of OpenSea, but when you go to OpenSea to buy one, never would you know that there’s commercial terms attached to that NFT, again, separate from the commercial terms you have just dealing with OpenSea as a platform.
Yeah. I think everything Stu’s saying is exactly right. I think the platforms and I think also the projects are doing a really good job of trying to converge on some sort of standard. So, you know, I mentioned The NFT License of Dapper Labs. You know, that’s something that’s been relatively, I think, widespread…has had relatively widespread adoption, and so, that, you know, there definitely have, and there have been, you know, I mentioned a couple of others, Rarible and the NFT Art Licensing Agreement and the NFT License Project. So, this is definitely something where there’s a lot of work in this space, and a lot of it is really excellent work, and I will say, you know, like there’s a little asterisk on that. There’s this xkcd and it’s like there are, you know, it’s like someone who’s saying like, well, there are 14 competing standards, and we really need to develop one universal standard that covers everything, and then it says, so, there are now 15 competing standards, right? So, you know, I think that’s like, there is definitely this…like it’s sort of this funny thing because I’m, you know, advocating for, well, we need the universal standard, and like I think each of these projects is like, yes, we are the universal standard, right, and that problem has been I think solved in the, you know, by Creative Commons like in the sort of general copyright arena previously and really was like, really is like the one standard for copyright licensing, but I think what we’re seeing right now is a bunch of projects coming together saying, well, we’re going to be the standard. You know, we’re going to solve this problem. So, I think a lot of great work is happening, but I definitely, definitely continue to advocate for use of the already existing standard, i.e., Creative Commons.
Yeah, but it seems to me that one additional problem is not just what the standard is, but then making sure that that standard travels every time there is a resale. Is that right? So, like what do you think are good technological…because I imagine that probably is a technological solution. So, what do you think could resolve that?
Yeah. I don’t know what the best technology solution is. I mean, there’s two models that we’ve seen out there. I’m sure there are many more that, you know, we’re just not seeing quite yet. One is that the NFT itself is coded in a way so that it, the smart contract sort of brings in another NFT that’s the legal contract that the original issuer minted, and you can’t access the content of the NFT you want, the digital work or the NFT you want without that legal contract NFT sort of popping up and you signing it, you know, with your MetaMask wallet or whatever, and agreeing to it, and then you can access the NFT. So, that’s one let’s say flavor of solution out there, that there’s something like that.
The other flavor of solution is to do something with the metadata and try to standardize that in a way so that every time the NFT appears, that metadata comes up, you know, even if it’s two lines that says, by purchasing this NFT, you agree to the following terms. Not ideal in terms of that being binding, but you’re probably, you know, within the area of feeling more comfortable that you created a binding agreement, but that’s another stream, to do something with the metadata in a universal standardized fashion and hope that gets widespread pick-up.
All right. Well, so, as we discussed earlier, Yuga Labs will be releasing updated terms and conditions. Is there anything in particular that you’re looking for there, and in general, like what kind of new developments or new trends are you going to be watching out for over the next few months or years as this plays out?
Marta, do you want to go first?
Oh, no. All you, Stu.
Okay. So, I think the most interesting development, again, you know, in NFT time, over the last few months, has been I think there are projects out there that really feel like, I just created something. I want everyone to enjoy it, use it, the community to run with it, and I’m just going to go walk away and do something else, but I think, you know, there are a lot of, and we see this every day in our practice, a lot of really creative people out there doing really interesting, creative, and innovative things, and in some case, you know, all of a sudden realizing what they’ve developed and how valuable that is, and I think there’s this tension between openness, let everyone use it, and well, I thought part of the world of NFTs was empowering the creative community. So, now I’ve created this incredible creative work. I should be able to benefit from it, even though I’m not a household name entertainment company, and I don’t want to just give it out into the world and let everyone use it. I want to monetize that. I want to finally be able to benefit from my art the way I’ve wanted to for many years.
So, I think there’s this tension we’re going to see over the next couple years between projects that are torn between a very vocal community saying, you should give us the rights to what we purchased, and the creators of that work who are, well, I’ll give you some rights, but I kind of developed this and built this, and I want to see what I can do with it and run with this and monetize it for my own benefit, and I think that’s coming fast. I think that’s going to be an interesting issue to evolve, and it’ll be interesting to see how Yuga Labs, you know, walks that line. I think they’re, in a very good way, trying to sort of be in both camps, but it’s going to take some maneuvering I think to stay down that sort of middle path.
I would add, I think one of the things that is so cool about NFTs is that it gives artists and creators the ability to monetize their work while also offering the underlying work, intellectual property rights, you know, up to the world in a way that is open and allows others to use the work in their own creative works, right, and to use the works in all sorts of ways, you know? It’s not that you have to…you can only monetize your work if you are, you know, either selling physical copies of it or if you are literally like selling the IP rights or licensing the IP rights. You can actually Creative Commons license something in a really open way, and then at the same time sell an NFT of it and monetize it, you know, as long as those two things are not in conflict, and one of the cool things about the fact that selling an NFT has actually nothing to do with selling the IP to that, you know, underlying file is that you can do both of those things simultaneously. You can monetize your work while also licensing it openly, which is one of the things that I’m so excited about in this space.
All right. Well, this has been an absolutely fascinating conversation. Hopefully some of the different NFT owners that maybe had some of those misconceptions that we talked about earlier in the show now have clarity, or at least know what questions to ask of the lawyers in their lives. Obviously, nothing here is legal advice without knowing your personal situation, but this has been so illuminating. Thank you both so much. Where can people learn more about each of you and your work?
Marta, why don’t you go first?
Yes. So, you can learn about me I guess on…I have a Twitter. I tweet a lot, and I think one of the things that…I am @MartaBelcher on Twitter, and I’m definitely tweeting a lot about this topic. One of the things I didn’t mention is that a very large percentage of NFTs are stored on IPFS, which is one of the technologies that I work on. So, thinking a lot about this and working on these issues a lot, and definitely excited to be here talking to you about it, Laura.
And Laura, thanks also from me for your time. This was a great conversation. Thanks, Marta. Yeah. I think the Skadden website where we post a lot of things that we’ve written in this space, that’s probably the best way to get information about me and sort of what we’re thinking about in this area, and we continue to think about it and write about it as we see issues popping up all the time.
Perfect. Well, thank you both so much for coming on Unchained.
Thanks so much for having me.
Thanks so much for joining us today. To learn more about Stuart, Marta, and intellectual property rights of NFTs, check out the show notes for this episode. Unchained is produced by me, Laura Shin, with help from Anthony Yoon, Daniel Nuss, Mark Murdoch, Shashank, and CLK Transcription. Thanks for listening.