Let’s start with the most important thing you should know
Artworks (digital or not) are not equivalent to NFTs. NFTs are “non-fungible tokens”, meaning they represent digital assets accompanied by a certificate of authenticity, and are stored on the blockchain. With NFTs, interchangeability is impossible, which means it’s a unique element that cannot be switched for another one, even if they hold the same value. On the contrary, a fungible asset is a good or a commodity whose individual units are essentially interchangeable, and each of its parts is indistinguishable from another part. For example, you can exchange two 5$ bills for one 10$ bill, which makes money a fungible asset. In all, NFTs represent tokens of ownership of a token, not the underlying artwork.
What is “minting”?
When you decide to create an NFT, you must first “mint” the digital version of your artwork. Minting an artwork refers to the act of tokenizing the artwork, i.e. uploading it to a given marketplace platform (SuperRare, Nifty Gateway, Makersplace, Foundation…) and issuing a token to guarantee its authenticity. You will then have to pay “gas fees” to initiate the transaction on the blockchain and publish your artwork as an NFT on a marketplace. Once you have minted a piece of artwork on a marketplace as an NFT, you should never mint it on another platform. If you ever decide to do so, note that most platforms reserve the right to delete the NFT or even ban you from their platform. However, you maintain all commercial rights to the artwork underlying the NFT. That means you can still market your art by making prints or merch, or even license it. Collectors are not allowed to do so - they only have the right to sell, trade or transfer the NFT. This means they can’t (unless they have written authorization from the artist): mint a copy of that NFT, make people pay to view the NFT, sell any derivative object incorporating the NFT or exploit the NFT in a commercial way.
This leads us to an important question: are NFTs protected by copyright? NFTs are likely not protected by copyright, because they do not meet the basic criteria for copyright protection. They basically represent data on a blockchain, which would not constitute an original work of authorship under intellectual property law. However, the artwork that you mint may be protected by copyright. For that reason, you should never mint an artwork you didn’t create yourself (or in collaboration with other artists). In the United States and Canada, copyright protection only extends to the expression of ideas, and not ideas or concepts only. This means you need to “fix” your idea on a medium for it to be protected.
What you need to consider before minting NFTs...
When minting a new artwork, there are a few things you should consider. The current NFT market mostly depends on the way artists and collectors behave on the blockchain. For that reason, you should always act carefully to ensure the integrity of the market in the future. To make sure you’re respecting copyright laws, ask yourself the following questions before minting a new piece:
Is the artwork you want to mint original and unique, and created by you?
Minting a non-original artwork or stealing art from someone else could be considered copyright infringement.
Have you created the artwork underlying the NFT yourself, or in collaboration with other artists?
If you want to mint collaborative artwork, make sure you get authorization from the other contributing artists.
Are you the owner of the artwork’s intellectual property rights?
You might not own the IP rights if the artwork was created for someone else as a commissioned piece, or if you created it for your employer. Additionally, if you’ve already licensed or transferred your rights to that piece, you might want to review these contracts before minting the artwork. Always consult a lawyer if you’re not sure.
If your work includes, incorporates or is inspired by other artists’ work, make sure you have the right to use them!
In intellectual property law, there are a couple exceptions allowing you to use other people’s art (such as: if the artwork is now in the public domain, or if it can be considered fair use). However, it’s always better to get the written permission from the artist or, if that’s not possible, to consult a lawyer.
If you want to know even more about what you need to consider before minting NFTs, you can read the following:
Can I transfer or sell my copyright to someone else?
Yes, an artist can transfer or assign its copyright to someone else. The transfer or assignment must be in writing and signed by both parties. Note that you should seek legal advice in order to proceed with the copyright transfer or assignment. If you’re selling an NFT, as mentioned before, you are NOT transferring or assigning copyright to the buyer. However, it would be possible to do so if it was expressly agreed by both parties in a written contract.
Can I mint a piece I created in collaboration with someone else on a marketplace?
Technically, yes you can. However, most platforms do not currently facilitate the “joint-minting” of artworks. It is therefore important to make sure that your relationship with the co-creator of the artwork is in good terms to ensure the profits are shared correctly.
Can I mint a piece I created for my past/present employer?
Technically, no you can’t. In theory, as we said before, an artist owns the copyright to each of its creations. However, there is an exception regarding “works made for hire”. If you created a piece for your employer (with whom you had an employment contract) or if a piece was commissioned through a written contract, the party that hired you to create the work is the owner of that piece, and the underlying copyright. In all cases, you should seek legal advice and preferably ask your employer or the person that commissioned the work if they authorize you to mint the piece. If they do, make sure you have that authorization in writing, if possible. Remember the basic rule: you can only mint artwork for which you own the copyright.
Can I use or incorporate someone else’s art in my NFT?
Technically, you should never copy or use someone else’s work without their prior consent, for the same reasons you wouldn’t want someone to copy your work and benefit from it without your approval first.
However, there are some exceptions to this rule where it can be considered acceptable to mint a piece that contains non-original elements (that you haven’t created yourself).
Before benefiting from these exceptions, you should always ask the artist for permission. The exceptions can be very difficult to apply with 100% certainty because there aren’t any “guidelines” per say. Most of the time, only a judge can determine if these exceptions rightfully apply. That’s why you should always make sure to get the authorization from the artist first.
Something else you should consider is to credit the artist you are incorporating in your artwork. In the description of your NFT, you should refer to the artist and the name of the artwork.
- Exception 1: Fair use defense
Fair use is simple to describe, but not always simple to apply. Basically, it means that the use you are making of any other artist’s work must be fair for it to be tolerated. Now, the hard part is to determine what is “fair”...
Because this concept varies from one country to another, you should always consult a lawyer if you’re trying to benefit from this exception to make sure it can be applied in your situation and you’re not infringing on someone else’s work.
In all cases, you should at least consider the following elements to evaluate whether your use of the artwork is “fair”:
- Your work should have a “transformative” purpose of the original artwork. This means you should be bringing something new to the market, kind of like how a remix of a song isn’t an identical copy but a new piece in itself. The “transformative” purpose of your creation should fall into one of these categories: (a) to comment or to criticize the copyrighted work, or (b) to make a parody out of it;
- The work you are appropriating should not be prominently displayed in your work, meaning it should not be the main part of your piece;
- the fair use exception exists mainly to allow freedom of expression in the world, not to allow people to benefit from the work of others fraudulently; and
- The fair use exception not only applies to copyrights, but to trademarks as well. Trademarks include business’ names, logos, and slogans. You may use trademarks in your work, but, you must ensure that using them will not confuse people about who created the piece. People must be aware of the reasons for and the purposes of your work (comment, critic or parody). In conclusion, you should not be using someone else’s trademark only to benefit from the traction/attention it will bring to your work.
- Exception 2: Public domain
Once an artwork is no longer protected by copyright, it falls into what we call “public domain”. There are a few ways art can become public domain. First, it becomes public domain once the copyright expires. In most countries, including the United States and European Union, copyright lasts for 70 years after the artist’s death. In other countries such as Canada, copyright lasts for 50 years after the artist’s death. Art can also be considered public domain if the artist deliberately dedicated his work to be in the public domain.
Once a work is in the public domain, you can use it freely, without having to request the owner’s permission or even without owning the copyright to the piece. You can even sell public domain art, as it is. But remember, when you mint an NFT, it must be your original work. Therefore, you should never mint a public domain piece (unless you’re using only some parts of it). Also note that, even if a piece enters the public domain, some photographs of the piece may not be in the public domain if they were taken later.