Jumping from mother monkey to bored ape: the value of NFTs from an artist’s and intellectual property perspective

Abstract

2021 was a miraculous year for non-fungible tokens (NFTs), which led to confusion among observers of the phenomenon from both the art industry and regulatory authorities. This article provides a dispassionate analysis of the value of NFTs from an artist’s and intellectual property (IP) perspective. In the longer term, NFTs could improve the fate of artists to authenticate their works, set their conditions and get a resale compensation per transaction. This could happen, once their underlying works can be minted too, so that an NFT entails more than just a self-referential certificate. The article focuses on the US jurisdiction where the NFT phenomenon originated and only touches upon the EU jurisdiction in regard to the droit de suite right and Chinese jurisdiction in regard to the transmutation of NFTs into the speculation-proof ‘digital collectibles’. The introduction provides a primer on the blockchain, NFTs, and the paradox of digital uniqueness and authenticity. Section II addresses the value game of art before and after the emergence of NFTs. Section III investigates the commercial side of NFT art and its new version of Maecenas. Section IV provides an analysis of the rights of the NFT holder versus the rights of the artist from an IP perspective; and focuses on unauthorized use of underlying works and regulation in the US and China. Section V provides the conclusions and contemplates whether NFTs will redefine the future of art and artists: from a showcase of bragging rights to an essential tool for artists to protect their IP rights.