In the middle of the pandemic the art world was taken by storm by the phenomenon of NFTs. The year 2021 became the “year of the NFTs”. But not long after that the legal challenges also emerged. One of the first prominent disputes that arose in this context was the one between Miramax studio and Quentin Tarantino with regard to NFTs related to the movie “Pulp Fiction”. And it was not the last one. Consequently, it is of importance to examine more closely what challenges in the field of copyright (and art law) NFTs bring, whether we can deal with them by means of the current regulatory framework or are we in need of a reform and, if yes, to what extent.
With regard to copyright, the dilemmas and misconceptions arise both on the side of authors/right holders/minters of “original works of art” to which the NFTs refer to, as well as on the side of the NFT buyers. For example, it is rather problematic from a legal point of view, when the NFT marketplaces talk about the blockchain track of the NFT as providing “a clear and verifiable record of the authenticity and provenance of the artwork”. Then, it is up for debate, whether the concept of authenticity and provenance in the crypto world is relatable to the copyright concept of authorship, or the notions of authenticity, originality and provenance related to art law in the tangible world. Furthermore, although the NFTs do not equal works of art, the buyers/collectors (NFT community) seem to think so, since the term NFT is confusingly being used to refer not only to the token itself, but also to the work of art. Moreover, there is a broad-ranging conception in that community, supported by the point of view of NFT marketplaces, that an art NFT buyer has the same status as the owner of the physical work of art. But can that actually be the case with regard to digital art? In addition, there is a question of what is the situation with works, which are not “born digital”, but there is an original in a tangible form that was digitised for the purpose of creating an NFT. Finally, NFTs open also dilemmas, as to what their owners can do with the underlying digital works of art in terms of their commercial exploitation (economic rights). What buyers don’t necessarily understand is that, with purchasing an NFT they don’t automatically and necessarily obtain any copyright regarding the work of art to which the NFT refers to, unless the author/right-holder/minter explicitly transfers his/hers copyright to them (in case he/she is entitled to it). As a matter of fact, the transfer of some rights might be necessary, in order for the buyer to be able to display the underlying work, for the purpose of resale or on other grounds. It would be of interest to examine, how some of the economic rights of the author, in particular reproduction and making available to the public are licensed and enforced in respect of NFTs and works of art to which they refer to.
With regard to the field of art law, one of the main dilemmas is related to the faith of tangible originals to which some “art NFTs” refer to. Can one really dispossess them, or require for them to be removed from the conventional and real-world art marketplaces and only enjoy their existence on the blockchain or in the metaverse? Furthermore, it is interesting to examine the differences between the concept of forgery in art law and with regard to NFTs based on such art. Finally, the notions of provenance and authenticity, as well as of the “original of work of art” in their understanding in the context of blockchain and their conventional meaning in the art world deserve a more detailed study.
