Non-fungible tokens (NFTs) have exploded across all areas of the art, media and entertainment industry, creating new markets and exciting (and potentially lucrative) opportunities for artists, musicians, brands, innovators and creators alike.
As with any new technology, challenges abound in these new worlds and sectors. Artists, creators and businesses looking to engage in NFTs and the digital art boom, should venture forth with caution – cognisant of the legal risks and regulatory quagmire. Knowing – and understanding – your moral rights (and their jurisdictional jurisprudence) is of paramount importance with regards to releasing an NFT collection.
Moral rights are a thread interwoven between the creator, commercial owner and collector, throughout the lifetime of an NFT. As an original author, the negotiation of your moral rights determines the encumbrance to both the commercial enterprise – in its production, marketing, and sale of your work – and ultimately the collector or and NFT holder.
In many instances, artists and creators are asked to waive their moral rights in order to facilitate the sale of their work, however, there may be merit – depending on the circumstance (or notoriety) – in the retention of some, if not all. Do your research!
What are moral rights?
Whilst copyright protects your property as an artist or creator, allowing you to control how your work is reproduced or distributed, moral rights seek instead, to protect your name, reputation and the intrinsic aspect of your creation.
In the United Kingdom, moral rights include:
- the right to be identified as the author of a work (paternity right)
- the right of an author to object to derogatory treatment of the work (integrity right)
- general right to object to any work being falsely attributed to you (false attribution)
In most countries, these rights are taken for granted and are simply a part of an artist’s bundle of rights. However, there are differences in how they are applied – and/or waived.
In the UK and USA (as well as many other countries) laws specifically allow artists or creators to contractually “sign away” all their moral rights. Although you can’t “assign” them to another person – as with copyright – you are able to waive them.
In France and Nigeria for example, moral rights are imprescriptible and inalienable, meaning they cannot be transferred, assigned or waived. The same applies in Japan.
Irrespective of jurisdiction, moral rights can be a powerful tool enabling artists and creators to protect their work, build their reputation, and further their careers.
Why are moral rights valuable?
Both the paternity right and integrity right can be very important to artists and creators. It’s vital to note, that attribution (paternity) right, needs to be “asserted” – it is not automatically bestowed.
An artist or creator who has not asserted their right to attribution or paternity, will lose all right to have their work identified as theirs – which could limit future commissions, affect resale remuneration and ultimately, prevent an artist or creator being acknowledged.
Integrity rights for an artist or creator can be fairly broad – and includes ways in which the work may be presented – or used – by an NFT holder. It also enables the artist or creator to object, should they deem any use of their work to be offensive, derogatory or compromising the integrity of their creative intent.
To waive or not to waive.
In most instances, NFT artists or creators specifically restrict all commercial use of their NFT artwork, prohibiting buyers from commercialising their NFT – or offering limited NFT licences like CryptoPunks.
The only rights extended to the owner of a CryptoPunk are, apparently limited to owning only your avatar; derivative works cannot be created, nor can the NFT be used in any marketing or commercial endeavours. Therefore, always check the terms of sale prior to purchase!
And yet, according to NFT Now, they “are a status symbol, a piece of Internet history and an unspeakably valuable asset…and may be the most important NFT project there is.”
NFTs that are “out in the world” and uninhibited by IP rights have the potential to raise brand awareness and enhance value – take Yuga Labs, the company behind Bored Ape Yacht Club, for example.
Having given full intellectual property licensing rights to users, they allow unrestricted commercial use, providing: “an unlimited, worldwide licence to use, duplicate, and exhibit the acquired Art for the purpose of making derivative works based upon the Art.”
In their first year, Yuga Labs racked up $100 million in profit and have today, reached the glorious heights of cultural ubiquity.
As an artist or creator, moral rights protect your legacy.
The right to false attribution may be relevant if you are identified – expressly or implied – as the artist or creator of an artwork you did not create, i.e. someone has forged your work.
This, unfortunately, has become a bit of a raging pandemic in the world of digital art.
At the start of this year, OpenSea announced over 80% of sales on its platform were a result of plagiarised fakes. And when Lois van Baarle, a Dutch artist searched the NFT marketplace for her name last year, she too found over 100 pieces of her art for sale – none of which had been put up by her.
In days of old, unexplored regions and unchartered territories were marked on maps with illustrations of dragons and sea monsters and titled ‘Here Be Dragons’. A fair moniker perhaps, for the relatively unknown terrain in the world of NFTs.
However, forewarned is forearmed!
As an artist or creator, it is vital to consider a long-term strategy when it comes to releasing an NFT collection and the potential moral rights and jurisdictional implications.
Taking the time to evaluate the legal ramifications is of paramount importance – and ideally, should take place during the NFT design process, rather than an after-thought, moments before your NFT drops!
I highly recommend retaining expert legal advice to help you design and draft appropriate terms and conditions to protect you – and your collection. Let’s chat.
(I have decades of experience in fighting dragons!)