When a Series’ Main Protagonist Gets Stolen and Sold – A Study of NFTs and Their Approaches to Copyright Licensing

Abstract

Over the past two years non-fungible tokens (NFTs) have become a highly popular, though extremely volatile trade asset. As mere data sets on the blockchain, NFTs are challenging the law to define the legal positions they entail. This article examines NFTs from the angle of copyright licensing, looking at it from a European perspective with the main focus on German law. Based on the technical specifics of NFTs, the paper evaluates the relevant legal position required for a permitted use of tokenized copyrighted content and how such a position may be obtained in the context of NFT trading. A review of the copyright schemes of 21 of the most sought-after NFT collections sets out the current state of licensing and identifies the prevailing legal uncertainties. The fact that these are not merely theoretical is then shown by the turbulent case of a ‘stolen’ ape avatar, tokenized by an NFT, that was set to star in a live-action animated series.