Author: Mark Penner and Eliane Ellbogen

About Mark Penner and Eliane Ellbogen

Eliane Ellbogen is an intellectual property lawyer with a focus on information technology. She advises and represents clients in complex, high-profile patent, trademark, copyright and trade secret matters. She is frequently called upon to litigate IP cases. She also handles the IP component of transactions involving IT companies.

NFTs, Intellectual Property, and Art: An Overview in Three Parts (Part 3 of 3)

woman in front of digital tech

In the first and second parts of our series on NFTs,[1] we discussed where NFTs derive their value and what this new breed of digital tokenization means for IP-rights creators, holders, and users. 

In this third and final instalment, we look at the history of NFTs from an artistic perspective and what their emergence means for the world of digital art.

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NFTs and Intellectual Property: An Overview in Three Parts (Part two of three)

woman in front of digital tech

In the first part of our series on NFTs,[1] we discussed what an NFT is and what “ownership” of an NFT provides.  You’ll recall that a non-fungible token is a unique blockchain-based “token” that consists of a chain of digital references to a specific intangible asset (e.g., digital files encoding music, art, video, icons, etc.). 

In this instalment, we consider what NFTs could mean for IP rights creators, owners, and users.

Part 2: NFTs and IP Law

As discussed in part 1, the purchaser of an NFT cannot automatically claim ownership over the underlying digital asset, or any rights to that asset. What is acquired is simply the ability to exclusively transfer the NFT’s ownership status. What, therefore, is the value of NFTs to creators, holders, or users of intellectual property (“IP”) rights in those digital assets? Surely the NFT’s owner is the only person who can display, download or access the digital work?  Not surprisingly, the answer is not as simple as many would like.

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NFTs, Intellectual Property and Art: An Overview in Three Parts

woman in front of digital tech

Earlier this year, something called an “NFT” sold for $69 million USD at auction.[1] This was likely the first time most people had ever heard the term “NFT.” From that point forward, discussions of various NFTs were everywhere; as a result, they entered mainstream consciousness, much like Bitcoin had nearly ten years ago. In fact, NFT or “non-fungible token” was named word of the year for 2021.[2]

Artists, musicians, and other creatives now saw in their work the potential for monetization. Investors woke up to the value of digital art assets. Indeed, in the first half of 2021, NFT transactions totalled in the billions.

Despite their near ubiquity, it is unclear to many what NFTs are and what role they play in the digital marketplace.  Just as it may be unwise for investors, collectors, and creators to ignore the burgeoning NFT industry, it may be equally unwise for those same people to ignore potential issues arising from this new asset class.  Even more unclear is what, if anything, these new digital assets mean for the users and owners of intellectual property (“IP”) rights. 

This series of articles tries to demystify NFTs and discuss what impact they may have for creators, users, and owners of IP rights. We aim to shed light on the intersection of technology, the creative industries, and IP law that arises with NFTs.

In our first article, we will discuss the nature of NFTs. In our second article, we will discuss the impact of NFTs on IP rights holders. In our final article, we will discuss the applicability of NFTs in the world of digital art.

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