The non-fungible tokens (NFTs), or non-fungible tokens in French, are more and more talked about. This technology, which enables the sale and purchase of digital objects, is, for now, mainly popular in the arts and entertainment fields, but could certainly spread to other fields in the future.
Concretely, an NFT is a data file stored on a chain of blocks – a blockchain – which makes it possible to certify the authenticity and to preserve the ownership history of each NFT. Each is unique and can contain a work of art, image, sound or any other collectible item.
For example, earlier this month French rapper Booba released the music video for his new song as NFTs in the form of animated cards. This summer, a collection of NFTs was also launched to promote the film. Space Jam: A New Legacy, starring basketball player Lebron James.
But not all can improvise creators of NFTs and it seems that this trend will give rise to several disputes in terms of intellectual property.
Last week, film studio Miramax filed a lawsuit in the United States against director Quentin Tarantino, after the latter announced that he would be releasing a series of NFTs based on the film’s original script for sale. pulp Fiction, winner of the Palme d’Or at the Cannes Film Festival in 1994 and the Oscar for best original screenplay in 1995.
The Hollywood studio alleges that the director infringes the copyrights and trademark rights he owns, which were assigned to him by Tarantino. Although certain rights had been granted to Tarantino allowing it to broadcast the work under very limited circumstances, the studio alleges that these rights do not cover NFTs.
Miramax is therefore asking the Court to grant it damages and an injunction preventing Tarantino from selling NFTs linked to the famous film.
This summer, record company Roc-A-Fella Records, co-founded by rapper Jay-Z, also filed a lawsuit against company co-founder Damon Dash, who had put up for sale an NFT linked to the rapper’s first album, Reasonable Doubt.
It will be interesting to see how US courts, and possibly Canadian courts, deal with the new issues raised by this emerging technology which seems to be gaining more and more importance in the market.
In the meantime, it remains important to properly protect your intellectual property assets in order to prevent third parties from appropriating them and deriving income from them through NFTs. It is also interesting to note that some large companies have already taken the necessary measures to protect their brands in association with virtual products in many jurisdictions, including Canada.
Nike is seeking in particular to register several of its brands in association with the following products: “downloadable virtual goods, namely, computer programs featuring footwear, clothing, headwear, eyewear, bags, sports bags, backpacks, sports equipment, art, toys and accessories for use online and in online virtual worlds ”. This undoubtedly gives food for thought in terms of an innovative strategy for the protection of trademarks.
Sarah Hébert-Tremblay is a lawyer in the intellectual property team of BCF Business Law firm in Montreal. Johanne auger is a partner in charge of the Trademarks group at BCF.
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NFTs and intellectual property: Pulp Fiction at the heart of a dispute