Regarding art, a copyright is a legal right granted to authors and artists for “original works of authorship.” In general, copyrights can be obtained for all sorts of works, from paintings and drawings to sculptures, poems, lyrics, and sounds! Basically, anything considered digital art can be copyrighted. Copyright protection allows artists to market, exploit, and protect their creative efforts. A copyright owner has the right to prevent the unauthorized reproduction, display, distribution, and performance of original works of art. On the other hand, only the copyright owner can authorize such uses.

The short answer is yes; NFTs are protected by copyright law. Copyright law protects original authorship works, including digital works such as NFTs and crypto art. However, copyright protection only applies to the original expression of an idea, not the idea itself. This means that while the copyright holder of an NFT can prevent others from copying their work, they cannot prevent others from creating similar works.

Ownership of a copyright is separate and distinct from ownership of any material object or digital asset (in which the work is embodied or embedded). What that means is that whether it’s a tangible painting or an NFT, the creator typically owns the copyright even after a sale.

According to SuperRare’s Terms of Service, artists do not lose copyright protection over works when they are sold on the SuperRare marketplace unless the parties expressly agree in writing to convey a copyright interest as part of the transfer. As further explained in our Terms of Service, collectors only have a property interest in lawfully purchased NFTs but do not have a copyright interest in the underlying artworks. The artist reserves all exclusive copyrights to the underlying copyrights.

As the copyright owners of their creations, SuperRare artists possess the sole authority to utilize their artworks commercially and all other exclusive rights granted by copyright law, even after selling their pieces on the SuperRare platform.

As a result, artists are granted the freedom to promote, produce, and license the artwork underlying minted NFTs. However, artists are not permitted to sell other digital works or NFTs if an identical work is sold or listed for sale on the SuperRare marketplace.

Collectors have the exclusive right to sell, trade, or transfer their SuperRare items. However, they may NOT make “commercial use” of the underlying work.

For example, collectors may not sell copies of the work they’ve purchased or mint additional NFTs based on the work. In addition, they may not sell access to the work, sell derivative works embodying the work, or otherwise commercially exploit the work. As detailed further in our Terms of Service, collectors receive a limited license only to display artworks underlying SuperRare items legally owned and properly obtained.

SuperRare can only maintain its standing as the premier platform for fine digital art if collectors continue to have high confidence in the integrity of the marketplace. Collectors should (and can!) be confident that every item on the SuperRare marketplace is an original and lawfully minted creation that does not infringe on the intellectual property rights of others.

As an Artist, you can improve your own reputation and add value to the SuperRare community by following these guidelines:

It’s also important to note that artists are responsible for making sure their own art doesn’t have any infringing content before minting to protect their own reputations and ensure the integrity of the marketplace. While SuperRare has no power to prevent an infringing work from being minted, it can take down infringing works, revoke minting privileges, or otherwise restrict the use of the SuperRare platform, particularly when an artist posts infringing content or violates the Guidelines. This is true regardless of whether or not a “fair use” exception may apply.

To ensure the uniqueness of each SuperRare NFT, artists are not allowed to mint multiple NFTs for the same work. This is to maintain the rarity and value of digital art and protect the artist’s reputation. Violating this rule may result in penalties, including suspension of minting privileges and account deletion.

SuperRare Labs respects intellectual property rights and will promptly investigate any copyright infringement claims. Pixura will use reasonable efforts to investigate such notices of alleged infringement and will take appropriate action under the Digital Millennium Copyright Act (DMCA) and SuperRare’s terms. Collectors assume the risk of the NFT being taken down due to a valid DMCA notice.

For more details about the rules for minting works on the SuperRare platform, check out our Terms of Service page.

NFTs have created an entirely new asset class for digital art and collectibles, but much of the value derived from digital art depends on the proven rarity of the NFT. SuperRare items are intended to be unique, meaning that there should only ever be one digital token or asset for a given work of art.

Blockchain makes it possible to verifiably prove the provenance and authenticity of digital art like never before, but there are currently no deployed technological mechanisms or standards to prevent Artists from minting identical NFTs and selling them without the original Collector’s knowledge.

In order to ensure the rarity of each SuperRare item, our Terms of Service provide that minting a work on the Platform constitutes an express representation, warranty, and covenant that the Artist has not, will not, and will not cause another to mint, tokenize, sell, or offer for sale another digital collectible, asset, or product for the same underlying work.

Reputation plays an important role in the art world. A solid reputation can turn a simple “Red” pixel into valuable work of art, but a poor reputation can create uncertainty and concern as to the value or credibility of a particular Artist’s works.

Reputation acts as a signal to art collectors, but also as an enforcement mechanism to discourage infringement and duplicative minting of SuperRare items. If you mint duplicative works beyond the number of editions promised (SuperRare only currently supports single editions), the market will notice.

If you consistently mint unoriginal content with a tenuous or non-existent “fair use” defense, the market will notice. Indeed, blockchain technology has enabled the market to notice these things better than ever before. In short, add value to your creative portfolio and to the SuperRare community by protecting your reputation through compliance with these Guidelines and Policies.

SuperRare Labs respects the intellectual property rights of others. It is our policy to respond promptly any claim that content posted on the site infringes the copyright or other intellectual property rights of any person.

SuperRare Labs will use reasonable efforts to investigate notices of alleged infringement and will take appropriate action under the Digital Millennium Copyright Act (DMCA) and these Terms, including removing or disabling access to content claimed to be infringing and/or terminating accounts and access to the site.

Collectors purchase SuperRare items assuming the risk that it may be subsequently taken down pursuant to a valid DMCA Notice. For more information on the DMCA and filing or responding to a DMCA “Take Down” Notice, please review our Terms of Service.

Failure to abide by these Community Guidelines and Policies may result in, without limitation, suspension of minting privileges, deletion of your account, revocation of your right to access the SuperRare platform, delisting of your art works, or other penalties deemed suitable by the SuperRare team.

SuperRare has the unilateral authority and discretion to remove, suspend, or revoke Artists’ access to the SuperRare platform for posting unoriginal content, whether or not a credible “fair use” defense exists.

The “fair use” defense is typically asserted as a defense to a copyright infringement claim and it works exactly like it sounds – the “use” of another’s copyrighted content ought to be “fair” if it is going to be tolerated. Artists appropriating unoriginal works should have a strong artistic basis, rationale, or purpose for exploiting the former work, and should not be motivated solely by passing off the work as their own or undercutting the original artist’s ability to market his or her own work. “Fair use” can be thought of as an embodiment of freedom of speech in the art domain.

Even though the rights of copyright holders should be respected, some copying and appropriating should be tolerated to facilitate a free and open exchange of ideas, concepts, and artistic statements. Although the standard for “fair use” varies around the world, Artist should consider the tests and examples below before minting works containing unoriginal appropriated content. When considering whether a “fair use” applies to your use of another’s content, United States courts will often strongly consider:

Sometimes considered the most important factor, consider whether your work creates something new by transforming the meaning, expression, or purpose of the appropriated content or whether your work is merely copying the visual elements of another work. Ask yourself, did you add any additional aesthetics, elements, information, or creative input or are you relying primarily on the aesthetics or message of the appropriated content?

Consider the collage piece “Niagara” by Jeff Koons (shown below right), which appropriates a photograph of a woman’s legs taken by fashion photographer Andrea Blanch featured in Allure magazine. Koons directly copied, cropped, and re-oriented the photo before including it in a painted collage among other pairs of women’s legs and other artistic elements.

Koons allegedly created the piece to comment on society’s ongoing interest in mass imagery, consumerism, and desire, and specifically chose Blanch’s photograph because its origins (Allure Magazine) fulfilled the purpose of his critique on modern human appetites and advertising. In Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), the court found that Koons’ use of Blanch’s photograph was “fair use” because it was used to create a new work of art with a distinct meaning, message, purpose and character – rather than a rote reproduction.

Original Work: Photograph of Woman's Feet Featured in Allure Magazine - Andrea Blanch

Fair Use Work: “Niagara” - Jeff Koons

Now compare to the Jeff Koons sculpture (shown below right) that was found to infringe the original Art Rogers photo (shown below left). Even though Koons argued that the sculpture was satire that criticized societies’ fascination with mass-produced commodities, the court ruled in Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) that the work was not fair use, highlighting the amount of the work that Koons borrowed and questioning how Koons’ use of this particular work aided his claim of satire. It probably did not help Koons that his sculptures sold for $376,000, with no royalties going to the copyright owner of the photograph.

The Koons' sculpture (shown ight) was found to infringe on the Art Rogers photo (shown left) without a valid claim of fair use

Certain types of works are more deserving of protection than others. In the world of fine art, its fair to say that most original creations are deserving of robust copyright protection, but only to the extent that they include protectable subject matter. Take for example, the sculpture (below right) that was found not to infringe on a photograph (below left) of a mountain lion holding a baby cub in her mouth. According to the court in Dyer v. Napier, (D. Ariz. Mar. 2006), the elements borrowed are found in nature rather than elements resulting from the photographer’s creative expression. Generally speaking, the less protectable the original subject matter, the less likely it is that the borrowing artist will be found to infringe.

Sculpture (shown right) found not to infringe on the photograph (shown left) because elements occurring in nature are less protectible than creative artistic elements.

Simply put, the more you copy the more your copying will not be considered fair use. However, courts do not just look to the physical or literal amount copied but may also look to whether you copied the “heart” or the most memorable aspects of the work. For example, certain types of transformative uses like parody may require extensive borrowing to ensure that the audience knows at whom the parody is aimed. Take for example the poster (shown below right) for Naked Gun, which literally copied nearly every aspect of the Demi Moore magazine cover, save only the photoshopped face of the ever-demure Leslie Nielsen. In Leibovitz v. Paramount, 137 F.3d 109 (2nd Cir. 1998), the court found that the defendant’s extensive copying fulfilled the purpose of parodying the original photograph and qualified as “fair use.”

Despite almost being a literal copy of the naked Demi Moore, the court found that the extensive copying in the Naked Gun movie poster was a proper parody and qualified as “fair use"

Like copyright law, the “fair use” doctrine also can apply to the use of trademarks (i.e., a company name, logo, or slogan). In general, trademark owners enjoy the exclusive right to use their trademarks in commerce. However, just as some Artists build upon existing copyrighted artworks, some Artists use well-known trademarks in their works often for satire or critical purposes.

The golden rule in avoiding trademark infringement is to ensure that there is no risk of confusion between the Artist and the trademark owner. That is, make sure your use of any trademarks does not imply or infer any association between the Artist and the trademark owner or that the trademark owner authorized your use of the mark when they didn’t. Simply put, the more that the public incorrectly thinks that your use of Nike logo was an actual Nike-authorized release, the more likely you are infringing on Nike’s trademarks.

Generally speaking, Artists may use trademarks freely for the purposes of commentary, criticism, and parody as long as it is clear what the purpose of the work is. However, if you are using another’s trademark for the any of these purposes, it should be aimed at the owner of the trademarks. For example, if you are going to use the style of the Coca Cola logo as a parody, the parody should be aimed at Coca Cola instead of just using the famous Coca Cola logo to attract more attention.

Consider the street-art piece below by Fukt, which uses the McDonald’s logo to fulfill a critique on America’s militaristic, commercial, and cultural dominance. The piece clearly is using McDonald’s trademark, but it is also clear that the use of McDonald’s trademark is for commentary purposes, and not any purpose officially authorized by McDonald’s or related to McDonald’s actual restaurant services.

Example of "Fair Use" of the protected McDonalds trademark

Artists are solely (or with the help of their attorney) responsible for ensuring that the content they mint does not infringe the rights of others. Indeed, our Terms of Service and minting procedure require the Artist to represent that their works are in fact original creations. Whether or not an Artist believes that his or her work qualifies as “fair use,” they may still be held liable for infringement if an aggrieved copyright or trademark owner decides to institute a legal action.

We want and expect all of our Artist’s to post non-infringing and original content, but we recognize that Artists need to borrow and build upon other works from time to time to fulfill their artistic message and style. However, SuperRare will not make value judgments about the merit of particular pieces or the credibility of a “fair use” argument if a work is allegedly infringing, as it is almost certainly impossible for SuperRare to do.

Consider the work from Richard Prince’s series “Canal Zone,” (shown below right) which incorporated a photograph of a Jamaican local by Patrick Cariou (shown below left). Do you think that added elements of a choppily photoshopped electric guitar and a few purple ellipses sufficiently transform the work? This work was actually held to be infringing by one judge only to be overturned by another judge on appeal, illustrating that even judges and attorneys have differing opinions on what constitutes “fair use.”

Richard Prince’s series “Canal Zone,” (shown right) which built upon a photograph of a Jamaican local by Patrick Cariou (shown left).

These examples of "fair use" are for illustrative purposes only. SuperRare cannot and will not decide whether any Artist's creation qualifies for a "fair use" exception. SuperRare is not capable of providing legal advice and does not operate with the authority of a court of law.

SuperRare is primarily concerned with fostering the well-established community of Artists and Collectors, combatting copyright infringement, and fulfilling its duties under the Digital Millennium Copyright Act (DMCA), as discussed further below. If your minting conduct is in violation of the Terms of Service, these Copyright Guidelines, our Community Guidelines, or is receiving complaints of infringement, SuperRare will take any action available to it at its sole discretion whether or not a "fair use" exception may apply.