Thoughts on NYSBA’s “Bored Apes and Monkey Selfies: Copyright and PFP NFTs” Article

I have some thoughts on a bit of what was shared by Alfred David Steiner in the New York State Bar Association article “Bored Apes and Monkey Selfies: Copyright and PFP NFTs”, exploring copyright and NFT Collections, specifically those like BAYC.

The article gives 4 “reasons why a ‘CryptoPunk’ may not merit copyright protection”, each of which I will respond to in order with my thoughts for NFTs at large (recognizing there are differences and nuances between NFT projects)

Buckle up…

1️⃣ “It lacks a minimum of creative authorship”
🚫 no, there is a human authorship element that is merely assisted by computer software. Also, the underlying assets are also protectable as works eligible for copyright protection.

2️⃣ “There are too few ways to express the same idea (the “merger” doctrine)”
🚫 just because there are a limited number of combinations for the underlying assets ≠ this suddenly triggers the merger doctrine (and the resulting works fail outside of eligibility for copyright protections). The merger doctrine would apply if someone is claiming copyright protection of a machine output that is based on a limited number of variables and total combined number of outputs; however, that’s distinguishable from what’s happening when an NFT project is created due to the inherently unique artistic works of authorship involved when the combination work is performed to produce the output of 10,000 (or some other number) of resulting unique works.

3️⃣ “It wasn’t created by a human, but assembled by code”
🚫 This was already address in 1965… yes, 1965! The U.S. Copyright Office, Report to the Librarian of Congress by the Register of Copyrights 1965 states: “The crucial question is ‘whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.’” The argument for NFT collections is that the machine, or rather software, is being used as a tool, an assisting instrument, to the artist.

4️⃣ “It wasn’t independently created; i.e., it’s based on an earlier work.”
🚫 I can’t tell, but assume this is referring to the underlying assets that are created and then used within software to generate the NFT collection. In this case, it could be argued that the resulting works in the collection are derivatives of the underlying asset. Derivatives would still be just as eligible for copyright protection as the original work. And, the different variables that make up each unique work within the NFT collection would help them be distinct enough from each other, and the underlying assets, to qualify individually as separate works.

I’d also say that this is a good example of works that fall within the “Human Creation with AI/ML” area of the Creation-Generation Spectrum (shared above) I put together for use when examining works that involve AI and where along a spectrum they should fall for purposes of copyright protection purposes.

I believe these types of works should generally be protectable by copyright law.

Let’s discuss… what do you think?

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