All my apes gone: Legal disputes at the intersection of IP and NFTs

Image Credits: Bryce Durbin / TechCrunch

Digital assets are revolutionizing the way we own and transact with them in the 21st century, but they are governed by the same legal framework as physical assets.

Uncertainty surrounds the intersection of NFTs and intellectual property law. It is up to the courts to adjudicate disputes under existing laws until revised federal statutes are enacted.

The creation, transfer and use of NFTs are being impacted by some of the most interesting and important intellectual property legal issues.

Trademark infringement and NFTs as artistic expression

One of the most closely followed intellectual property and NFT cases is the case of Mason Rothschild and his collection of Metakin NFTs.

Rothschild argued that the NFTs he made and sold were protected by the First Amendment to the U.S. Constitution.

For NFT creators, it’s important to think through and document what, if any, IP rights they want transferred as part of the sale.

The US District Court presiding over the case gave us a glimpse into how courts may interpret trademark claims and defenses.

The court denied Rothschild's motion to dismiss the lawsuit because there wasn't enough cause to dismiss it. The case could go to trial.

The court relied on previous cases to reach its decision. Rothschild's use of NFTs toauthentic the images doesn't change the way the artistic expression defense should be analyzed.