NFTs, Copyright, and Your Rights

As long as there have been creators, there have been others who try to free-ride or exploit creators’ successes without permission. NFTs are one of the more recent developments (excuses) for more of the same. But creators don’t have to be confused and they certainly don’t have to take NFT-based infringement lying down.

NFT stands for non-fungible token. It is computer code that uses blockchain technology to certify that an electronic file connected to that “token” is uniquely identified. But let’s not get lost in the techno-jargon, because that’s not what matters to you.

The principle of the NFT that the technology allegedly guarantees that a computer file, usually of an image, is authentic and unique. In this way it’s a little bit like the painter who signs and numbers his paintings – a guarantee of authenticity and rarity, if not uniqueness. And if you – the artist and copyright owner – decide to “mint” one of your images into an NFT and sell that copy, that’s just fine

Other scenarios are not so clean-cut. Unfortunately, anyone could take a digital copy of your work, mint it as an NFT, and try to sell it, and this has already happened at scale with both visual works and music.  In other instances, people who buy an image that has been minted into an NFT may try to prevent others from making copies of that image.

This is perhaps the greatest misunderstanding about NFTs – just because a person buys a copy of an image, regardless of whether it’s been made into an NFT, that purchase has nothing to do with who owns the copyright. Nor does minting an NFT stop someone else from right-clicking on an image, making a copy, and saving it as a NEW file they are able post anywhere they please–even though this action might well be copyright infringement.

This brings us to a central point creators should be clear about – NFTS AND COPYRIGHT ARE COMPLETELY DIFFERENT AND SERVE DIFFERENT FUNCTIONS. So, if/when someone makes an NFT of your image without your permission, they might very well be infringing your copyright and you may have a legal claim against them. The moment you create an image or any other copyrightable work (literary works, music, movies, sculpture, etc.) it is automatically protected by copyright. That copyright is a property right and just because you sell or display copies of your work does NOT mean you gave away your copyright.

If a person buys a book, does anyone really believe that gives them the right to make more copies of that book and sell them? So, why would anyone think that simply buying a digital file of an image and “minting” it as an NFT would give them the right to stop others from making copies of that image? They just bought a copy, not the legal rights protected by copyright law. NFTs may be the hottest new topic, but they are for sure one of the newest ways for people to violate copyright law.

So, what are the steps you need to take to be able to defend and enforce your rights? First, get organized. Second, register your work with the U.S. Copyright Office. Third, take action where you can. These are the principles on which we developed RightsClick.

First, use the Portfolio database in RightsClick to organize your works according to legally relevant information like the creation date and the type of work it is. Next, you’re ready to register those works with the Copyright Office. Remember that automatic protection we mentioned? Well, there’s a catch.  

Under U.S. copyright law, if you don’t register your work with the U.S. Copyright Office before the infringement begins[*] the law takes away some of the most important enforcement tools against copyright infringement. And if the infringer knows what they’re doing, you are much more likely to get a stiff-arm response to a request for compensation, if your work wasn’t registered in a timely manner. But, looking at it from the glass-half-full side, if you registered on time, you are more likely to get paid. Sooooooo, Register your work!

The RightsClick registration tool walks through a few, plain-English questions to enter the info needed to apply for copyright registration. A few clicks and you’re done. We submit the application for you – you don’t have to deal with the Copyright Office website.

Once you’re organized and registered, you’re in a much stronger position to quickly take action against an infringement of your work (NFT or otherwise), and RightsClick provides tools to help you do that. You can watch how these work in our video demos.

To repeat, if we can make one thing clear, NFTs and copyright rights are two very different things. If you see an opportunity to mint your work and make money, go for it. But don’t be confused about your rights to control your work or about anyone else’s claim to that they are allowed to exploit it. Because it’s your work.

[*] It’s actually more complicated than that, but we’re trying to keep this short.