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Non-fungible Tokens and Intellectual Property Law

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Non-fungible Tokens and Intellectual Property Law ( non-fungible-tokens-and-intellectual-property-law )

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painting under copyright’s first sale doctrine) but would not own the copyright in the painting. In this circumstance, if the purchaser minted an NFT of the painting, such act would likely constitute infringement. Given the above, you should review an NFT to determine: • Which copyright(s), if any, are implicated by the NFT • Whether the party transferring the NFT owns the copyright(s) • Whether the transferor (if the lawful owner) wishes to transfer copyright ownership with the NFT If there are no ownership or infringement issues and the transferor wishes to transfer copyright ownership along with the NFT, they might wish to divide the various rights associated with a copyright (known as exclusive rights) and parcel them out to different holders. These rights include the rights of: • Reproduction • Distribution • Adaptation • Performance • Display See Exclusive Rights of Copyright Owners. For example, with respect to music minted into an NFT, you could draft the associated smart contract with provisions that provide performance rights only to the purchaser of the NFT while retaining all other rights for the artist, who could then sell one of those other rights (such as the synch rights) to a different purchaser of a separate NFT. The open nature of the blockchain means it is relatively easy to track these various rights as they pass from party to party and makes tracking any associated royalty streams relatively easy compared to current standards. For more on music contracts, see Music Contracts. Lastly, note that NFTs themselves are likely not copyrightable, given that U.S. law requires works of authorship to be “fixed in any tangible medium of expression” to be eligible for copyright protection. See 17 U.S.C. § 102(a). NFTs themselves are intangible and are therefore likely outside the scope of U.S. copyright law. Related Content Practice Notes • Virtual Currency, Bitcoin, and Cryptocurrency Resource Kit • Virtual Currency State Law Survey • DMCA Compliance and Enforcement • DMCA Safe Harbor for User-Generated Content • Copyright Fundamentals • Works Made for Hire • Transfers of Copyright Ownership • Assignments of Copyrights • Exclusive Rights of Copyright Owners • Music Contracts Annotated Forms • Website Copyright Policy • DMCA Take-Down Notice • Copyright Assignment Checklists • Work Made for Hire Checklist • Copyright Assignment Checklist • DMCAPre-NoticeInvestigationChecklist

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