NFT, Etherum, Bitcoin, Cardano… Names that may (or may not) ring a bell, but they've been at the heart of discussions on the web of late, and with good reason: NFTs are a real legal headache for Internet users, lawyers and law students alike.
And rightly so, since the law remains relatively vague on the subject. Coinaute has the answers.
This article is aimed at beginners, the curious and even enthusiasts!
Warning: a lot of legal terms mentioned! I promise, we'll try to simplify!
Disclamer: Coinaute doesn't claim to be for or against something, unless it concerns a breach of the Penal Code. The articles on the Coinaute site are written for educational and entertaining purposes. We do not claim to be lawyers or jurists.
NFT = copyright?
A quick reminder of what an NFT is: a token leading to a digital or physical property (or both) stored in a blockchain. A safe that enables information to be transmitted and received ultra-securely.
The NFT is also associated with a creative work. (Audio, artistic, photographic or videographic, etc.). It cannot be bought and owned by a single person.
As a fungible token, in essence, it's a bit like entering a race and shouting "first" when you reach the finish line.
Can we really talk about copyright law then?
A legal conundrum
While Keanu Reeves has already said that "NFTs are easily reproducible", some famous companies such as Marvel and DC Comics are refusing to produce independent NFTs based on their superheroes.
Just as the Russians declared that space belonged to them, the NFT and its right to belong can be summed up as something intangible. We'll probably never be able to guarantee that we're the only ones in possession of what we've bought.
The artist, on the other hand, owns and will always own his work, unless he decides otherwise. With regard to content that may be stolen, websites such as OPENSEA are planning to set up a system to remove an NFT whose nature stems from theft.
But how do we prove the authenticity of a third party's accusation or of our NFT work?
This is precisely the judicial conundrum for the jurists of the 21ᵉ century.
The court already considers the presence of the NFT to be proof of authenticity of authorship, however, just like any theft, a supply of tangible evidence should be enough to end the discussion.
Author = official owner of the file until proven otherwise.
Buyer = right of possession of the immaterial and the more or less real material.
To quote the French Penal Code:
"L 122-4 of the Intellectual Property Code, "Any representation or reproduction in whole or in part made without the consent of the author or his successors or assigns is unlawful. The same applies to translation, adaptation or transformation, arrangement or reproduction by any art or process whatsoever."
If the right to represent the work involves advertising (article L 122-2 of the French Intellectual Property Code)".
The problem, in reality, is the Internet and its nuances.
Let's talk about reproduction rights
As a reminder, the right to reproduce an image, a video, or even to mention a person who existed in the past in a work of fiction (e.g. Churchill) ceases to take place when the term of protection ceases to exist.
The same applies to NFT and copyright. Luxury brand Hermès was quick to ask for the MetaBirkins on OPENSEA to be removed, as they were inspired by one of their cult bags. Naturally, they disappeared.
Not to Mason Rothchild's liking, he continued to promote his work, notably on the Discord platform. As well as Rarible. He also invoked freedom of artistic expression to protect himself.
In response, Hermès filed a complaint with the New York District Court, announcing in no uncertain terms that "insisting on the deceptive nature of this operation, the House has asked for the project to be halted, the domain name to be recovered, and damages to be paid, linked in part to the sale of the incriminated NFTs."
nft justice
Mason must have been just as frustrated as Guinevere.
What does the French Penal Code say about reproduction?
He quotes, "Article L. 122-4 of the Intellectual Property Code states that "any representation or reproduction in whole or in part made without the consent of the artist or his successors in title or assigns is unlawful."
As for penalties:
3 years' imprisonment and a fine of 300,000 euros
7 years' imprisonment and a fine of 750,000 euros in the event of organized counterfeiting
Damages
Destruction of the work
Finally, what about the right to parody?
While DC Comics and Marvel prohibit the sale of independent NFTs, the same applies in France to any type of work based on something tangible or intangible that already exists.
As a reminder, the right to parody allows you to parody a work (as this YouTube channel of Japanese animation abbreviated in French does, for example), fanfiction, sketches and fanart, all in full legality.
It is impossible to invoke this right for the sale of NFT, as this would be a case of resale and counterfeiting.
