The Treachery of Images: Non-fungible Tokens and Copyright

Abstract

This article tackles various questions regarding non-fungible tokens (NFTs) and copyright, including whether an author can use an NFT to transfer copyright, several applications of tokens as digital rights management, and the issue of potential copyright infringement in NFTs. These questions are analysed from a UK perspective, specifically looking at cases from England and Wales and Scotland, while also covering a few relevant CJEU decisions. This is a relatively recent technology, which will require a lengthier technical explanation to analyse the legal issues that are raised. In some instances, the public perception will be dealt with as well, as it has become evident that there is considerable misunderstanding not only about what an NFT really is, but about the ownership and copyright issues that surround the technology. The article analyses the use of NFTs for digital rights purposes, particularly the transfer of rights, and while assignment by electronic means is possible, it is yet not clear whether an NFT can lawfully transfer rights. With regards to copyright infringement, it is the main thesis of this article that the unauthorised minting of a work may not infringe copyright, although there may be a communication to the public. This paper has been minted as an NFT: https://rarible.com/token/0x60f80121c31a0d46b5279700f9df786054aa5ee5:1183840?tab=details