By now, even people who don’t follow copyright and crypto stories may have read somewhere that a crypto group called Spice DAO purchased a rare copy of Frank Herbert’s Dune for €2.66 million and then announced its intent to make the work publicly available, produce an animated series, and promote derivative works. The group also floated the notion of minting each page into an NFT, burning the book while video-capturing themselves doing so, and then minting the book-burning video into an NFT. (Nice to have so much time on one’s hands.)
Since the initial tweet on January 15, Spice DAO has been smacked around the internet by even legal laymen reminding the group that the purchase of a copy of a work, even a rare and old copy, does not transfer any rights to do anything whatsoever with the underlying material. If these guys really spent that much money on the book expecting an ROI based on any their stated plans, they should quit while they’re behind. The lawsuits they have already implied would cost a more than they’ve spent so far.
Meanwhile, Spice DAO’s stated intent to mint NFTs out of material they do not have the right to reproduce brings me to the reason I am finally saying anything at all about this crypto trend that’s been making noise for almost two years. Although I have often been asked about NFT art and copyright, I have been reluctant to write a post about the topic, mostly because I wanted to avoid writing that obligatory paragraph describing what an NFT is while pretending that any explanation makes sense. Like the rest of you, I have read definitions of NFTs in various places—critical, analytical, and promotional—but find it impossible to believe that the virtual trading floors exchanging NFTs do not represent an irrational market, buying and selling smoke.
It’s a digital record of a transaction that lives on the blockchain …
… when someone buys an NFT, they’re not buying the actual digital artwork; they’re buying a link to it.
It’s a digital certificate for intellectual property and is stored on the blockchain.
And so on.
Seriously? Are we all pretending that any of that means anything? A parable about the Brooklyn Bridge comes to mind, but in that scenario, at least there’s an actual bridge the huckster does not own. But okay. Even if the NFT market is not just another free-for-all invented by tech bros to sell to the Court of the Naked Emperor, it is clearly the coolest new way to rip off artists. As Kevin Collier wrote on January 10 for NBC …
Last week, an unidentified user on OpenSea, the dominant marketplace for the burgeoning NFT art market, started putting tens of thousands of listings of [Aja Trier’s] work, often duplicates, up for sale. Thirty-seven of them sold before she was able to convince the platform to take them down.
Tell me how this was not inevitable. If literally anyone can mint and upload an NFT to a trading platform like OpenSea, of course thieves are going to grab artworks they “find” online and do exactly what Collier’s article describes. After more than twenty years of creative works being used without permission online and enriching the platforms on which they are being used, this black-market trade in NFT art finally sheds all pretension of respect for the artist’s right to control and monetize her own work as she sees fit. Collier adds …
Trier’s story has already become common in the burgeoning world of NFT art sales. RJ Palmer, a San Francisco artist who designs creatures and monsters both as commissioned digital works and for movies and video game companies, said issuing takedown requests to NFT platforms for his work became a daily routine before he eventually gave up.
Whack-a-mole 3.0? If making artists give up on their rights was not the intent of network effects, it sure as hell is a byproduct. Creators find it both daunting and depressing to discover dozens, or hundreds, of unlicensed uses of their works online, but to now find the works explicitly being sold without permission is a whole new level of predation. Collier’s story reports that OpenSea is valued at over $13 billion, which is its own kind of crazy, but it is astounding that these platforms are not responsible for validating the provenance of the NFTs being offered.
I say astounding but, of course, it’s not surprising. In fact, the most obvious absurdity that leaps out at the moment is this: the NFT enthusiasts have been brosplaining to artists that this is a crypto-currency solution to their woes—a new method of validating ownership in their work, and one that might even replace copyright. But aside from the fact that copyright does a lot more than validate ownership, how can the NFT serve as a means of validating ownership if the market allows any jamoke with a computer to mint and trade NFTs made from art they don’t have rights to use in the first place?
Presumably, the Spice DAO group with the rare Dune copy is exactly as naïve as their public statements imply. If so, that story is mostly a laugh. The Herbert estate can adequately address infringements of the work, if they arise. But for the artists mentioned in the NBC story, and creators even less well-known, having their art appropriated and sold as NFTs without their permission isn’t the least bit funny. In fact, one might even call it a crime.
Photo by: justlight