Welcome back to our Copyright Law series. In this article, we'll cover how copyright law may apply to artworks on SuperRare and expectations for artists in regards to the law.
When two or more authors create a single work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole (i.e., digital art with audio elements), co-authors are considered joint authors and have an indivisible and equal interest in the work as a whole. Thus, true joint authors by default are equally entitled to sales and royalties, unless the joint authors agree otherwise. Currently, SuperRare does not facilitate the joint-minting of digital artworks and expects its Artists to work with each other in sharing profits received from jointly created works. SuperRare is working on ways to increase the flexibility and modularity of its market mechanics and aims to support these types of features in the future.
Works Made for Hire
Certain types of specifically commissioned works, or so-called “works made for hire,” are an exception to the general rule that the Artist is the legal creator of the work. If a work was commissioned through a written agreement or made during the scope of the Artist’s employment, the party that hired the Artist may be considered both the author and the copyright owner of the work. Thus, an Artist could be in violation of an obligation owed to another by minting artworks legally considered “works made for hire.” Whether a work is considered a “work made for hire” depends on the facts and circumstances. If you plan on minting a work that was specifically commissioned by a written agreement or created during the scope of your employment, you should first determine whether that work is “work made for hire” and consider speaking to an attorney before minting.
Are Commissioned Works “Works Made for Hire”?
Not necessarily, but the rules may vary based on the jurisdiction. In the United States, artwork specially ordered or commissioned for use as a contribution to a collective work or as a part of a motion picture (or other audiovisual work) may be considered a “work made for hire” if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. Whether or not a work is legally a “work made for hire,” you may have assigned copyrights to the person who commissioned the work if you signed an agreement specifically stating so. Always be on the lookout for copyright-related terms whenever you are creating works for others and be sure that you are only minting works that you own the copyrights to. To learn more about “works made for hire,” visit the U.S. Copyright Office.
NFT Ownership ≠ Copyright Ownership
Ownership of a copyright is separate and distinct from ownership of any material object (i.e., a painting) or digital asset (i.e., a non-fungible token or “NFT”) in which the work is embodied or embedded. According to our 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 they do not have a copyright interest in the underlying artworks. The Artist reserves all exclusive copyrights to the underlying copyrights.
Can Artists Make Commercial Use of SuperRare Artworks After They Sell?
As the copyright owners for the works they create, SuperRare Artists have the exclusive right to make commercial use of their artworks (and all other exclusive rights under copyright law) even after being sold on the SuperRare marketplace. This means, that Artists are generally free to market, print, and license artwork underlying minted NFTs. However, and as explained further below, 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.
The Collector’s Limited Rights to SuperRare Artworks
Collectors have the exclusive right to sell, trade, or transfer their SuperRare Items, but Collectors may not make “commercial use” of the underlying work. For example, Collectors may not sell copies of the work, mint additional NFTs based on the work, 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.
Artists Can Only Mint Original, Authorized, and Non-Infringing Works
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 on your own reputation and add value to the SuperRare community by following these guidelines:
Mint only original, non-infringing works that you actually and personally created
Mint only works that you have the legal authority to mint (i.e., you are the owner of the copyright and you have not transferred the copyright to another)
Refrain from minting stolen, knock-off, or infringing content
Refrain from minting content created by other SuperRare Artists, unless expressly permitted
If your work incorporates unoriginal content, make sure that either the appropriated content is in the public domain or you have a valid “fair use” defense
Artists Are Responsible for Determining That Their Works Do Not Infringe
All Artists should monitor their own art for infringing content before minting to ensure the integrity of the marketplace and to protect their own reputation. Our Terms of Service expressly require Artists to represent that their works contain no infringing or unauthorized material. SuperRare has no power to prevent an infringing work from being minted, but does have the power to take down infringing works, revoke minting privileges, or otherwise restrict the use of the SuperRare platform for posting infringing content or violating these Guidelines, whether or not a “fair use” exception may apply. More details about rules for minting works on the SuperRare platform can be found in our Terms of Service.
Artists Must Refrain from Minting Unoriginal or Unauthorized Content Unless a Credible Fair Use Exception Applies
Determining whether it is acceptable to mint unoriginal content is a difficult, if not an amorphous and subjective judgment call. Indeed, many celebrated contemporary, pop, and collage art forms that embrace the practice of reappropriating unoriginal content are often met with much controversy, especially when the “fair use” work sells at astronomical prices with no financial or reputational credit given to appropriated artists. Although the digital art world is relatively new, and standards for fairly rewarding all contributors are still under development, it’s clear that the crypto art movement has continued the practice of reappropriating unoriginal content, often with a symbolic, transformative, or meme-worthy purpose. Artists should never mint a work containing copyrightable elements of another’s work unless they are authorized by the copyright owner or a valid fair use defense applies.
Thanks for reading! In the next article we'll chat about "Fair Use", providing examples of what may or may not be considered copyright infringement.