The Fiction of NFTs and Copyright Infringement

In the first quarter of 2021, the sales of art in the form of Non-Fungible Tokens (“NFTs”) reached over $200 billion dollars. The arrival of NFTs in the mainstream art market has profoundly shaped the way artists exploit their works. This sensational boom has attracted some of the world's biggest names across pop culture and sports, including celebrities such as Snoop Dogg, Paris Hilton, Post Malone, Tom Brady and Rob Gronkowski, to create their own NFT art. Director Quentin Tarantino has also capitalized on this craze through the creation of an NFT collection based on the film Pulp Fiction. However, Production company Miramax has sued Tarantino over these NFTs, accusing him of violating the company’s copyright. This is the first instance where a court will have to opine as to the extent an unauthorized NFT may be considered copyright infringement. This Essay explores the nature of NFTs and to what extent, if any, they may be considered unauthorized copies or derivatives of the underlying work. NFTs are digital tokens that do not themselves include a copy of an associated work. At best, NFTs might include a link to a digital copy of a work. As such, this Essay concludes that NFTs are not unauthorized copies or derivatives of the underlying work and as such are not subject to copyright infringement claims.<br>