I do not know who needs to hear this, but owning an NFT is not the same as owning the copyright or intellectual property of a project. This is the first point I want to make.
An NFT, or non-fungible token, is a type of digital asset that lives on a blockchain. It has a monetary value and is useful for authenticating and tracking the provenance of another digital medium. That could be JPEGs, but it could also be music files or anything else that can be stored on a hard drive. But an NFT is not the underlying medium itself. That’s the second point.
When you spend any amount of money – whether it’s $5 million or $40 million – on something that is auctioned or traded as an NFT, you do not get legal ownership of the underlying media associated with that token. What you own when you buy an NFT are the keys to a non-fungible – perhaps unique – token. You can trade with this token, hold it, or issue it in Decentraland. But the digital file associated with an NFT can be copied, pasted, and downloaded just as easily as any other – that’s the third point.
Think of this as a promotional message. The relationship between NFTs and digital works is complex. Wherever cryptocurrencies come into contact with the real world, there is often confusion. And while NFTs fit seamlessly into existing copyright law, there is a possibility that these new technologies could change existing intellectual property standards for the better.
None of this is obvious when you look at platforms like OpenSea or browse NFT Twitter. That’s why I wanted to mention it. Non-fungible tokens are often touted as a way to give “scarcity” and “permanence” to infinitely reproducible digital objects. In some ways, this view is correct. NFTs do confer scarcity on digital goods, but that scarcity is limited to the blockchain-based token itself.
It also seems reasonable to think that if you buy a Bored Ape NFT, the ape is yours. As mentioned earlier, the underlying intellectual property belongs to the creators of the Bored Ape Yacht Club (who are represented for their work in Hollywood), but the buyer might have a strong emotional attachment to “his” character. This could explain why people use Bored Apes characters as profile pictures on Twitter and LinkedIn. Over the weekend, NFT critics drew an analogy to a recent successful auction of a rare print of the science fiction classic “Dune” and drew their ire. In December, SpiceDAO, a decentralized, autonomous organization, paid $3 million to auction Alejandro Jodorowsky’s unpublished manuscript for an unrealized film adaptation of Frank Herbert’s 400-page Odyssey at Christie’s.
This weekend, a month after the hammer fell, DAO tweeted its plans for the storyboard. They wanted to “publish the book (to the extent permitted by law),” “produce and sell an original animated series inspired by the book to a streaming service,” and “support derivative community projects.”
When Wikipedia contributor and Web 3 critic Molly White saw this tweet – a plan that was essentially known when SpiceDAO originally raised $11.8 million via crowdfunding – she posted a story on her blog, “Web 3 Is Going Great,” titled “SpiceDAO Wins $3 Million Auction to Buy Extremely Rare Storyboard Book of Dune, Only to Learn that Owning a Book Does not Give Them Copyright.” Other media organizations jumped at the opportunity.
“[SpiceDAO] were quickly informed that buying the physical book did not grant them copyright or licensing rights (much like buying an NFT does not automatically grant rights to the underlying artwork). You would think they would have checked beforehand,” White wrote.
Others joined the pile on Twitter. Some pointed out that buying a rare book is not the same as owning its contents. Others incorrectly implied that DAO had purchased an NFT of the manuscript, which of course would also not establish ownership of Dune’s intellectual property. As far as I know, there is no NFT or plans for one.
The work also referred to as “Jodorowsky’s Bible,” is a collection of writings and prints that are of historical significance. Making it as public as possible seems like the right thing to do. Many have noted that the book’s content is already hosted online (on Google Photos, for example), but DAO wanted to make the public property a little more permanent since Google can remove the file at any time.
The members of DAO also wanted to treat the work with the respect it deserves. Crowdfunding was just one way to show how important the work is to the public. The creation of derivative works by highly motivated fans is another.
SpiceDAO is obviously aware of what it has bought and is aware of the legal aspects of its plans. After winning the auction, DAO co-founder, Soban Saqib, told Buzzfeed that they were in the process of transferring ownership of the Bible to preserve it permanently and figuring out how to handle the numerous copyrights to the Bible’s content that artists and their estates may claim. Frank Herbert’s “Dune” will not become public domain in the US until 2060 and in the EU until 2054, but there are still things DAO can do. The laws for fanfiction are a bit looser and the “fair use” exception provides some leeway.
Although DAO has a governance token (“SPICE”) that is traded on the open market, it is not clear whether the group intends to make a profit on its efforts. It could be in violation of securities regulations. And after being forced to rename itself from DuneDAO due to copyright complaints, you can be sure they are aware of certain restrictions.
NFTs and DAOs are part of a shift in the way people think about the Internet and digital ownership. It is an attitude toward “public goods,” an overriding belief that people should be able to benefit from their work and collaborate more efficiently.
There is already a legal status that fits this attitude: open copyright. There is a growing trend for NFT creators to release their projects as a CCO – the least restrictive copyright – so that anyone can download, remix, transform and profit from these digital objects. The tokens still have an owner, but the work belongs to everyone.
In the U.S., the principle is that any medium – a song, a picture, a three-hour blockbuster movie – is yours by default as long as you created the work. On Twitter, you publish a post and technically own the intellectual property behind it. That tweet belongs to you and you alone. The same is true for blog posts. Or uploading images. By default, you own that work.
The estate of Frank Herbet may want to continue to profit from Herbert’s “Dune,” which is its right. It is entirely possible that the next great work of literary significance will be crowdfunded by a DAO or an NFT. Let us hope it really belongs to the whole world.
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