A few things come to mind, assuming the NFTs are pointing at largely unmodified versions of an artist's work.

tl:dr - Absent a license or fair use, the more I look at the issues, the more convinced I am that minting someone else's work as an NFT is infringement.
The copyright holder's exclusive rights are defined (in the USA) by 17 USC 106. (I'm going to ignore 106A moral rights for this.)

At least two of those rights are potentially violated by minting an NFT without authorization: the reproduction right and the derivative works right.
Let's start with reproduction.
I've been informed, as a result of last week's furry/NFT discussions, that NFT best practices involve making sure that the art the NFT points at is on IPFS because that avoids link rot issues.
I could be wrong, but I'm fairly sure that involves making a copy. If unauthorized, that's infringing absent an excuse of some kind. The use of that copy to facilitate the sale of the NFT would, I think, provide a good argument that the NFT proceeds are copyright damages.
Derivative works infringement is slightly more of a stretch, but I think plausible.

"A “derivative work” is a work based upon one or more preexisting works, such as a translation...or any other form in which a work may be recast, transformed, or adapted." 17 USC 101.
The argument here would be that the NFT is an unauthorized recasting, transformation, or adaptation of the original. This is tougher, because it would require showing both the recasting and that the NFT is a protected work.
That said, the NFT is code; code is often protectable.

And the value of these NFTs is - I'm told - that they provide some form of authenticity or provenance that makes them a digitable collectible version of the thing they're associated with. That feels like a recasting to me.
And, purely from a "traditional judicial approaches to copyright" standpoint, the argument that you've found the One Simple Trick that permits you to monetize a largely unmodified version of someone else's work without compensating them is frequently a very hard sell.
Now, that said:
The derivative works argument is challenging, partly because the NFT tech is new, and partly because there's actually less caselaw on what constitutes a new kind of derivative than one might expect (and some of that's complex, with at least one circuit split).
So I don't think the derivative work argument is an unreasonable one. It seems plausible to me, given that there's a fixed association between the NFT and the underlying work.
If and when that becomes worth litigating is, of course, an entirely different subject. And one that will depend a great deal on specifics, including whether the desired defendant is reasonably within reach of the courts you can access.

But I think the possibility exists.
This is, of course, an option. But I was told that it's no longer viewed as a best practice - in part because a disgruntled artist can simply re-upload their art with slightly different file names to break the links if something like IPFS isn't used.

And this, of course, is the elephant in the corner that a lot of the people selling NFTs don't want you to look at.

NFTs don't replace existing law; they exist alongside it.


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More from @questauthority

24 Nov
Saw this right at the end of my stream.

As viewers can attest, it damn near killed me. Nearly forgot how to breathe, I was laughing so hard.
For those who are wondering:
This is Mike Lindell's long-promised "SCOTUS" case, but in a not-yet-finished form. Fear not, though - it's nearly ready. Just needs a few minor things. Like a plaintiff, lawyers, someone dumb enough to file it, that kind of thing.
If there's sufficient demand and I have nothing better to do I *might* give it a read-through tomorrow (either twitter thread or twitch, don't know). And, of course, if some state is dumb enough to jump in bed with the Pillowmonster, I'll cover it then.
Read 6 tweets
22 Nov
I was overly pessimistic here.

The dollar amounts just dropped in O'Rourke. Facebook got their request to the dollar; the judge made the scissors make snip-snip noises at CTCL, but barely touched them, and even Dominion got most of their request.

For those who want the bottom line, here are the award amounts:
Facebook, Michigan, and Pennsylvania got what they requested to the penny; CTCL's request was $64,012.24; Dominion's was $78,944.00.
Interestingly - and I'm sure nobody will be able to prove that this is not entirely coincidental - the total amount awarded (~$187k) is reasonably close to double the $95,000 that the plaintiffs told the judge they'd raised to fund their performative frivolous nonsense.
Read 4 tweets
22 Nov
Summary of "this wobbegong nonsense:" non-expert misidentified an animal; experts got mad.

I'm not going to talk about wobbegongs. But I think it's worth a brief summary thread/rant because the QT is an illustrative case study of what I hate about subject-matter expert twitter.
Now, to be clear, as everyone including the original poster now recognizes, the animal in the photo wasn't a wobbegong. That is beyond dispute.

Apparently the message was slow getting through because the OP muted a thread gone viral AS ONE OFTEN DOES.

This is perhaps a thing to keep in mind when you are getting frustrated that someone isn't listening to you on twitter. When mentions are nuts, it's very very easy to miss even the most helpful feedback. I can personally vouch for this.
Read 10 tweets
20 Nov
Scalping game consoles and controllers is crappy behavior.

It's generally, the QT notwithstanding, not copyright infringement, at least to my knowledge.
There was a UK proposal to make scalping game consoles illegal, at least where people are using bots to do bulk purchases, earlier this year. Don't think it went anywhere.
For clarity:
I quoted the first tweet because, while scalping is bad it's usually not illegal. And (this was apparently too implicit) making frivolous legal threats is also bad, whether it's being done in a knowing attempt to bully or through ignorance.

Read 4 tweets
19 Nov
No. They are statements of opinion based on disclosed facts. You don't have to like or agree with those opinions, but they are opinions, the basis for the opinions is clear, and you can draw - and have - your own very different conclusions based on the same facts.
I don't think the statements would be any more defamatory if made today, for the same reason. Similarly, while it would potentially be defamatory to call Rittenhouse a convicted murderer, I'm far from confident that it would be defamatory to call him a murderer even now.
The fact that Rittenhouse killed those two people is established truth, and I'm not sure anyone's under any legal compulsion to agree that the jurors made the right call on self-defense. So I think there's a good argument it would be opinion.

(That said, it does get more risky.)
Read 4 tweets
19 Nov
OK, y'all - I'm going to do what I've been planning to do tonight for quite some time. And looking forward to with some anticipation (and nervousness):

I'm going to watch Cowboy Bebop.

So here's your five-minute warning to mute the thread, because there may be spoilers.
Yes, the live action. It dropped today. C'mon, seriously. Did you think I meant something else?
I'm not a huge anime fan. I am a Cowboy Bebop fan. The original anime is spectacular across the board. That said, not a purist. I'm looking to see how the characters and story work, and how they translate from animation to live action.
Read 30 tweets

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