Non-fungible tokens (NFTs) are the latest cryptocurrency phenomenon to go mainstream. NFTs quickly caught the world’s attention after Christie’s sold the first NFT artwork – a collage of images by digital artist Beeple for $69.3 million.
Much of the discussion around NFTs revolves around the development of art collections, just digital art. NFTs can function like any other speculative asset, buying them in the hope that one day their value will increase so they can be sold for a profit.
But some people have decided to copy or mint other people’s work, that is why in this article, we will be discussing if you can mint someone else’s NFT.
What is NFT
An NFT is a digital certificate of rights associated with an asset and made immutable (i.e. proof of ownership cannot be altered) by blockchain technology. This is a powerful tool in digital assets as ownership cannot be proven by physical ownership, and works can be copied quickly and easily. While much attention has been paid to the commercial value of NFTs and the creation of an “ownership economy”, there has been significant uncertainty as to the scope of legal rights acquired and content creators, rights holders (which may be distinct from content creators), NFT buyers and the NFT marketplaces are protected.
One benefit of buying NFTs is that all authentication is done on the blockchain. As long as the buyer can confirm that the original sales account is linked to the artist (usually “verified” by the marketplace), the buyer knows that the work being purchased is authentic, no matter how many times it changes hands. However, the blockchain does not tell the buyer whether the work is merely a copy of someone else’s copyrighted work – rendering the purchase worthless and subjecting the buyer to significant legal liability if it is resold.
Can You Mint Someone Else’s NFT?
No, you can’t mint someone else’s NFT, and the reason will be explained below.
Artists have already made it clear on social media that their works have been “minted” into NFTs and offered for sale without their permission. Online marketplaces appear to have developed procedures to address the potential for infringement (for example, OpenSea’s Terms of Service invite rights holders to submit complaints and state the site “will take down works in response to formal infringement claims and will terminate a user’s access to the Services if the user is determined to be a repeat infringer.”)
Rights holders, however, may resort to litigation. The artist or other rights holders might opt to bring a claim against the sellers or creators of the NFTs for copyright infringement. Who gets to sue will depend on who owns the copyright: the artist or the owner of the physical work. Unless the artist expressly conveys the copyright to someone else in a signed writing, the artist is the person with the right to sue for infringement of the right to prepare derivative works, such as digital images.
The copyright ownership issue can become even more complex. Potential claims might arise from artists who initially created the work under an employment arrangement with someone else and then attempt to create digital works based on the original piece using NFTs. In a letter publicised in several media outlets last week, DC Comics warned its freelancers not to sell NFTs of works based on DC Comics characters, for example. Depending on the terms of the artist’s employment agreement or freelance contract, the rights holder might have claims for breach of contract. That will likely involve questions of copyright preemption.
There will also be disputes over whether the NFT constitutes fair use. Some of the issues that will have to be resolved include whether the NFT involves a creative work of expression, copies an entire physical work, and has the potential to deprive the copyright owner of revenue from the exploitation of the work. But this has not been tested.
Similarly, artists have voiced concern about works that appear to be very similar to their works, even if they are not exact copies. This is not surprising given that digital artists often borrow from other sources to make memes and other works. SuperRare’s online copyright explainer page, for example, notes, “it’s clear that the crypto art movement has continued the practice of reappropriating unoriginal content, often with a symbolic, transformative, or meme-worthy purpose. The site warns that artists should never mint a work containing copyrightable elements of another’s work unless they are authorised by the copyright owner or a valid, fair use defense applies.
Although beyond the scope of this article, NFTs also raise regulatory issues. Sellers and buyers should be aware that NFTs may be subject to compliance and trade regulations, anti-money laundering and bribery laws, and other rules. Because the buyer or seller of an NFT could be anywhere in the world, participants in the NFT market should evaluate whether they are in compliance not only with U.S. law but also with other global and regional laws.