To mint or not to mint: non-fungible tokens and the right of publicity

The article was first published in English language by Fordham Law Review. For more information, please contact [email protected] For original publication: Bobek, H. (2023). To mint or not to mint: non-fungible tokens and the right of publicity. Fordham Law Review, 92(2), 639. Publication URL: https://ir.lawnet.fordham.edu/flr/vol92/iss2/12 Objective: to study the legal regulation of NFT technology under the US legislation and to develop proposals to minimize offenses involving its use, including those related to violations of the right to publicity. Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, which predetermined the following research methods formal-logical and sociological. Results: NFT technology creates new challenges in the field of protecting the right to publicity. Using NFT to violate the right to publicity creates serious difficulties for copyright holders seeking compensation for the damage caused. The difficulty of protecting the right to publicity in this market is due to the unique democratic nature of the token, the widespread anonymity of NFTs and the irreversibility of transactions with them, as well as the uncertainty of contractual terms with respect to secondary buyers. Scientific novelty: based on the analysis of judicial practice, the article examines the issues of violation of the right to publicity arising in connection with the NFT and possible approaches to this problem. Legal scholars and commentators argue that certain features of NFTs pose pronounced threats to the right of publicity, namely the technology’s novelty, democratized nature, anonymization of creators, transferability across platforms, and immutability. To combat these threats, the author proposes that rights owners should enter into right of publicity license agreements; that NFT platforms should strengthen their terms of service and develop higher barriers of entry for users; and, finally, that courts should order that infringing NFTs be “burned”. Practical significance: the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering the issues related to the legal regulation of NFT technology.