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A New York federal court has ruled that a non-fungibletoken (“NFT”) for a digital image similar to a Birkin handbag may be an “artistic” work for purposes of determining whether the NFT infringes the Birkin trademark and other IP rights.
Few issues in the world of intangible rights contain as many legal uncertainties as do non-fungibletokens. Non-FungibleTokens (NFTs), ranging from art and literature to fashion and cinema, remain among the hottest legal topics in the world of intangible rights, despite the lack of clear legal regulation.
To be clear, this isn’t the first time blockchain and crypto promised that they would make artists’ lives easier or open up new opportunities, only to fail completely. NFTs (Non-FungibleTokens), for example, were originally billed as a way for digital artists to create scarcity and enable them to charge more for “unique” works.
NFT stands for non-fungibletoken. Non-fungible basically means unique. By way of comparison, a $10 note is an example of a fungible asset, because it can be replaced with another $10 note, or two $5 notes. Multiple pieces of copyright material may exist in a single digital work. What are NFTs?
Whether you are looking to make your own nonfungibletoken to sell or you’re looking to buy an NFT as an investment, you need to be aware of copyright and trademark laws that might apply to your NFT. Are NFTs (NonFungibleTokens) Considered Intellectual Property? What is a NonFungibleToken?
Grimaldi ) whereby the right to protect a registered trade mark (a protection given in the USA law essentially by the Lanham Act ), under some circumstances, cannot be enforced to detriment of “the right of others to express themselves freely in their own artisticwork” (from the Rogers v. Grimaldi case).
Secondly, it refused to recognize those nonfungibletokens as an ‘Art’ and held them disentitled for any protection under the ‘First Amendment’. The nine-person jury made two important observations. Firstly, it unanimously found the creator of MetaBirkin NFTs guilty of trademark violation on all three counts.
Copyright safeguards the original digital work and gives its creator some exclusive rights, such as the ability to duplicate and distribute the work. Therefore, if the specific artisticwork sold as an NFT satisfies the specified conditions, such as originality and innovation, it may be qualified to be secured by copyright.
As recently in 2022 Hermès, a fashion house sued Manson an NFT (non-fungibletoken) creator for trademark infringement who marketed a digital asset called “Metabirkins”, which was a digital copy of a bag created by Hermès, which sold at many high prices. This right is given to literary and artisticwork like music, etc.
In May 2021, a phenomenal IPilogue submission by Keir Strickland-Murphy (Osgoode Law ‘22) touched on the recent boom of Non- fungibleTokens. In this piece, I will recapitulate Strickland- Murphy’s exploration of IP ownership of Non-fungibleTokens and expand on recent developments since May.
In his motion, Rothschild argued that he used “MetaBirkins” as a title to an artisticwork as opposed to a source-identifying trademark. Although the order does not resolve any of Hermes’ claims on the merits, it does offer a first glimpse at how courts may treat trademark claims involving NFTs moving forward.
The last couple of years has seen the emergence of Non-FungibleTokens (NFTs) as an important medium for the creation, sale and collection of art, with numerous instances of big money purchases of NFTs. Image by Riki32 via Pixabay.
A postcard can be taken either as a literary work or an artisticwork under sections 2(c) and 2(o) respectively of the Copyright Act, 1957. These vintage picture postcards, if original, are works in which copyright subsists ( section 13 of the Copyright Act, 1957 ).
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