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Executive Summaries Nov 22, 2021

NFTs and Intellectual Property: Pulp Fiction at the Heart of a Dispute

We hear about non-fungible tokens (NFTs) more and more every day. For now, this technology allowing the sale and purchase of digital objects is mostly popular in the arts and entertainment industries but could certainly spread to other fields eventually.

An NFT is a data file stored on a blockchain, allowing the authenticity and ownership history of each NFT to be certified. Each of them is unique and can store a piece of art, an image, a sound or any other collectible item.

For instance, earlier this month, French rapper Booba released the video for his new song as NFTs in the form of animated cards. This summer, a collection of NFTs was also launched to promote the movie Space Jam: A New Legacy, starring basketball player Lebron James.

However, not everyone can become an NFTs creator and it looks like this trend will lead to several intellectual property disputes.

Legal Issues

Last week, movie studio Miramax filed a lawsuit in the U.S. against director Quentin Tarantino after the latter announced that he would release a series of NFTs based on the original screenplay of the 1994 Cannes Film Festival Palme d’Or winner and 1995 Best Original Screenplay Oscar winner, Pulp Fiction. The Hollywood studio claims that the director infringes on the copyright and trademark rights it holds, which had been assigned by Tarantino. Although Tarantino had been granted some rights limited to very specific circumstances, the studio alleges that these rights do not cover NFTs. Miramax is seeking damages and an injunction preventing Tarantino from selling NFTs related to the famous movie.

This summer, record company Roc-A-Fella Records, co-founded by rapper Jay-Z, also filed a lawsuit against the company’s co-founder, Damon Dash, who released an NFT tied to the rapper’s first album, Reasonable Doubt.

It will be interesting to see how the U.S. courts, and eventually the Canadian courts, will deal with the issues arising from this emerging technology, which seems to be gaining momentum on the market.

Meanwhile, protecting your intellectual property assets from being appropriated by others for profit through NFTs remains very important. On this note, some major companies are already taking action to protect their marks in association with virtual goods in many jurisdictions, including Canada. Notably, Nike is seeking protection for its marks in association with the following goods: “downloadable virtual goods, namely, computer programs featuring footwear, clothing, headwear, eyewear, bags, sports bags, backpacks, sports equipment, art, toys and accessories for use online and in online virtual worlds”. This is certainly food for thought in terms of innovative trademark protection strategies.

For any questions relating to NFTs or the protection of your intellectual property, do not hesitate to contact our team who will be pleased to assist you with your trademark and copyright needs in Canada, the United States and abroad.