Are NFTs Copyrighted?

The past few years has been absolutely crazy for NFTs. From Eminem to Serena Williams, everyone has heard of this novel technology. Not to mention, valuations are insane. Cartoon monkeys are selling hand over fist and Beeple even sold an NFT collage for over $60 million.

But the rising popularity of this novel technology has led people to question the copyright laws associated with NFTs. In this article, I will be talking about NFT copyrighting and the potential issues associated with it. So without further ado, let’s jump right in.

What are NFTs?

Before we start let’s talk about what NFTs are. In essence, NFTs are unique pieces of data stored on the blockchain. In other words, each asset is assigned specific metadata which ensures authenticity and this is recorded on an online database. This database (blockchain) is completely transparent. Anyone can view the metadata for each NFT.

Are NFTs copyrighted?

In most cases, NFTs are not copyrighted. In a nutshell, NFTs can be seen as cryptographic receipts to the underlying artwork. The underlying artwork falls under traditional copyright law and NFTs act as a derivate. When an owner buys the NFT they acquire the property but this does not extend further. There are two exceptions to this rule. One is fair use and the second is the transferring of the copyright.

Why are NFTs not copyrighted?

Firstly we need to understand what rights copyrighting provides. Essentially, a copyright owner has complete autonomy over their work. Once an artist creates a new piece of artwork they automatically acquire the copyright. This includes the exclusive rights to replicate the work and create derivatives.

In the case of NFTs, this is classed as a derivate of their artwork and therefore artists have complete control of the underlying artwork. The copyright remains with the artist even after the point of sale. That being said, there are a couple of exceptions to this rule. One, if an owner without copyright has received the license from the original artist then they get complete control. This contract can be written or coded into the smart contract.

Secondly, if a person without copyright modifies the meaning or expression of the work then this will likely come under fair use.

How to avoid copyright infringement?

Acquiring the copyright license – anyone can acquire a copyright license from someone else provided a written contract is signed by both parties.

Fair use – if you modify the meaning, expression, and aesthetic of the artwork then you will likely be protected by the fair use doctrine.

Public domain – in most countries the copyright expires after a certain period provided the artist doesn’t renew it. The expiration time varies from country to country, but it’s 70 years in the United States. Once the artwork enters the public domain it is free to use by anyone without permission from the original artist.

NFTs and copyright infringement

There is no denying that copyright infringement is rampant in the NFT space. Written contracts are far and few between. NFTs can be created in a few minutes often using encrypted technology. Open Sea even stated in a recent Twitter thread that over 70% of NFTs created were either fake or plagiarized.

As these criminals are anonymous it makes it hard to crack down on. Not to mention, there is not a legitimate art certification process, most of the time it goes unnoticed. If you want to learn more, click here to read my previous article.

Final Thoughts

Overall, NFTs are generally not copyrighted. The rights of the artwork ultimately lie with the original artist. There are a couple of exceptions with fair use and public domain. But at the end of the day, copyright or not, this doesn’t stop many in the space from plagiarizing work. That is why it is important to follow the correct legal framework. Thanks for reading.

Want to learn about NFT trading cards? check out my article – NFT Trading Cards: The Next Step in Collectables.

It is worth noting that this is not legal advice and you should consult a lawyer.