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Of Disaster Girl and Everydays: How NFTs Invite

Challenging Copyright Assumptions Around

Creator Support

Stacey M. Lantagne*

Abstract

Most of the successful monetization of internet fame through memes has

historically occurred through offline merchandising: books, T-shirts, and

other sponsorships. However, the rise of NFTs has created an entirely new

revenue stream around memes. The little girl in the Disaster Girl meme

sold an NFT of the meme’s famous photograph for over $400,000. She was

shocked when she learned that NFTs could provide a way to capitalize on

her internet fame.

Previous legal analyses of memes have understood monetization within the

traditional copyright structure of licensing and assumed that copyright

holders would seek to restrict the meme’s use on the internet without con-

sent or payment. NFTs have stepped outside the traditional underpinnings

of copyright to reimagine how owning and monetizing creativity work in

two important ways: (1) Where copyright law would compensate only the

photographer and leave the subject of the meme with no intellectual prop-

erty rights, NFTs view the subject of the meme as the “owner” entitled to

compensation; and (2) NFTs do not seek to control reproduction and distri-

* Professor of Law, Western New England University School of Law. The author

wishes to thank the participants of the Franklin Pierce Center of Intellectual

Property Academic Roundtable – Works In Progress and the University of

Mississippi Faculty Writing Groups for helpful comments and suggestions. The

author is also grateful for the University of Mississippi School of Law Summer

Research Grant and Western New England University School of Law Summer

Research Grant that enabled this article.

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266 Harvard Journal of Sports & Entertainment Law / Vol. 13

bution of the meme, but rather encourage such behavior to increase the

value of the underlying meme.

Since the invention of the internet, legal commentators and creative stake-

holders have endlessly debated whether and to what extent copyright law

should be adjusted for the internet. The rise of NFTs has answered those

questions by moving away from the traditional legal understanding of where

value lies in favor of endorsing the internet’s understanding of value: that

there can be value in virality, and that value can be recognized outside of the

law’s definition of copyright-holder. This Article examines the NFT phe-

nomenon’s departure from copyright norms and concludes that NFTs pre-

sent an opportunity to reconsider how we think about ownership and

scarcity in valuing creativity.

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2022 / Of Disaster Girl and Everydays 267

Table of Contents

I. Introduction ....................................... 268

II. Monetizing Memes .................................. 270

III. The Arrival of Non-Fungible Tokens ................ 273

IV. NFTs, Memes, and Copyright Law .................... 276

A. Scarcity vs. Virality ................................ 285

V. Envisioning a New Way of Thinking About Creative

Value ............................................... 291

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268 Harvard Journal of Sports & Entertainment Law / Vol. 13

I. Introduction

Non-fungible tokens, or NFTs, have taken the world by storm. Last

year, sales of NFTs increased by over 21,000% over the previous year.

De-

spite the seeming ubiquity of these new assets, much confusion exists as to

what they are, not least among the people purchasing them. As the govern-

ment struggles to decide how to regulate NFTs,

online communities are

trading them and developing their own understandings of what NFTs are.

This Article focuses on a small subculture within the NFT economy:

the auctioning of meme NFTs. Most of the successful monetization of in-

ternet fame through memes has historically occurred through offline mer-

chandising, such as books, T-shirts, and other sponsorships.

However, the

rise of NFTs has created an entirely new revenue stream around memes. For

instance, the little girl who appears in the Disaster Girl meme sold an NFT

of the meme’s famous photograph for over $400,000.

She was shocked

when she learned that NFT’s could give her a way to capitalize on her in-

ternet fame.

Prior to the rise of NFTs, legal analyses of memes understood possible

monetization within the traditional copyright structure of licensing,

whereby those wishing to use the meme would request authorization from

its owner in exchange for a fee.

By conditioning use of a creative work on

the copyright holder’s permission, licensing operates from a starting point of

See Marco Quiroz-Gutierrez, Bored Apes and CryptoPunks Help Jolt NFT Market to

over 21,000% Growth and $17.6 Billion in Sales Last Year, Fortune (Mar. 10, 2022,

2:42 AM), https://perma.cc/H6TN-6LA4.

See Jessica Rizzo, The Dune NFT Fiasco Is the Least of Crypto’s Legal Worries,

Wired (Jan. 19, 2022, 7:00 AM), https://perma.cc/HTB3-ARQD.

Taylor Lorenz, Memes Are Becoming Harder to Monetize, The Atlantic (May 31,

2018), https://perma.cc/HR7G-LL3E.

Nicole Lyn Pesce, ‘Disaster Girl’ Makes over $430,000 Selling the NFT of Her

Meme, MarketWatch (Apr. 30, 2021, 10:30 AM), https://perma.cc/ND8H-

WT4S.

Id.

See, e.g., Terrica Carrington, Note, Grumpy Cat or Copy Cat? Memetic Marketing

in the Digital Age, 7 Geo. Mason J. Int’l Com. L. 139, 158 (2016) (analyzing the

market of memes as one of licensed advertising); David Tan, Digital Memes, Fair Use,

and the First Amendment, 24 J. Internet L. 1, 26 (2021) (analyzing the monetization

of a meme through licensed merchandising); Cathay Y. N. Smith & Stacey

Lantagne, Copyright & Memes: The Fight for Success Kid, 110 Geo. L.J. Online 142,

158 (2021) (discussing generally the alleged infringement of a meme commercially

exploited through licensing fees); see also Furie v. Infowars, LLC, 401 F. Supp. 3d

952, 975-76 (C.D. Cal. 2019) (discussing the market of the meme in question as

licensing opportunities); Griner v. King, No. 21-CV-4024 CJW-MAR, 2021 WL

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2022 / Of Disaster Girl and Everydays 269

enforced scarcity.

Therefore, in the pre-NFT paradigm, licensing a meme

presupposed the ability to restrict its presence absent consent and/or pay-

ment. Because memes were – and are – defined by their virality online,

they

could only realistically be restricted in the offline world, so this was mainly

where they were licensed.

NFTs, however, have stepped outside the traditional underpinnings of

in two important ways: (1) Where copyright law would compensate only the

photographer and leave the subject of the meme with no intellectual prop-

erty rights, NFTs view the subject of the meme as the “owner” entitled to

compensation; and (2) NFTs do not seek to control any reproduction or

distribution of the meme, but rather encourage such behavior as to increase

the value of the underlying meme.

Since the invention of the internet, legal commentators and creative

stakeholders have endlessly debated whether and to what extent copyright

law should be adjusted for the internet.

The rise of NFTs has answered

those questions by moving away from the traditional legal understanding of

where the value of a creative work lies and instead endorsing the internet’s

understanding of value: giving meme ownership to the subject of the meme

and recognizing that the value of the meme rests in its unrestricted prolifer-

ation online. So, in the auctions of meme NFTs like Bad Luck Brian and

Disaster Girl, the people depicted in the memes minted the NFTs and initi-

ated the auctions, not the people who took their famous photographs.

The

popularity of a given meme also seems to increase the value of the meme’s

5106047, at *1 (N.D. Iowa W. Div. Oct. 20, 2021) (discussing the market of the

meme in question as licensing opportunities).

See Kevin Roose, Buy This Column on the Blockchain!, N.Y. Times (June 30,

2021), https://perma.cc/J4KZ-RF94.

See Taylor Locke, Elon Musk Reposted this 28-Year-Old’s Meme

—

and Then It Sold

as an NFT for Nearly $20,000 in Just 2 Days, CNBC (Oct. 22, 2021, 5:38 PM),

https://perma.cc/66VN-96WZ (“[M]emes are permissionless . . . .”) [hereinafter

“Elon Musk”].

See, e.g., Robert L. Shaver, Copyright Law in the Digital Age, 49 Advocate 17

(2006); Susanna Monseau, Fostering Web 2.0 Innovation: The Role of the Judicial Inter-

pretation of the DMCA Safe Harbor, Secondary Liability and Fair Use, 12 J. Marshall

Rev. Intell. Prop. L. 70, 75 (2012); Marketa Trimble, The Multiplicity of Copyright

Laws on the Internet, 25 Fordham Intell. Prop. Media & Ent. L.J. 3 39 (2015);

Brad Frazer, Recent Developments in Internet Law, 50 Advocate 26 (2007); Lateef

Mtima, Whom the Gods Would Destroy: Why Congress Prioritized Copyright Protection

over Internet Privacy in Passing the Digital Millennium Copyright Act, 61 Rutgers L.

Rev. 627 (2009).

See Zach Sweat, Scumbag Steve NFT Sells at Auction for Over $57,000, Know

Your Meme News (Mar. 15, 2021, 6:38 PM), https://perma.cc/4GMK-A525 (listing

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270 Harvard Journal of Sports & Entertainment Law / Vol. 13

NFT.

For instance, when Elon Musk tweeted out Eva Beylin’s meme, the

increased virality helped her sell the NFT for almost $20,000.

Their diver-

gence means that no one knows what to do with copyright and NFTs – and

that makes them exciting.

This Article examines the NFT phenomenon’s departure from copy-

right norms and assesses whether its evaluation of ownership and remunera-

tion has any lessons for the future of digital copyright law. It specifically

focuses on how NFTs have treated memes to provide insight into how com-

munities around NFTs understand their value. Part II begins with an exami-

nation of the historical challenges around monetizing memes and how

memes have been licensed in the offline world. Part III turns to the develop-

ment of NFTs, discussing what they are and how they have been used. Part

IV analysis the ways in which NFTs challenge our traditional thinking

around copyright, particularly questions of ownership and scarcity. Finally,

Part V imagines how we might accept NFTs’ invitation to rethink how we

support creativity.

II. Monetizing Memes

One of the most challenging questions to answer about the copyright-

ability of memes is definitional: what qualifies as a meme in the first

place?

There is no single, agreed-upon definition. “Even websites dedi-

cated to keeping a scholarly historical record of memes, like Know Your

Meme, do not define the term.”

Some people use the word “meme” to

refer to a “specific subset of internet behavior that involves pasting captions

onto other people’s photos. The catalog on Know Your Meme . . . in-

clude[es] basic caption manipulation as well as viral sensations with more

complicated histories.”

Merriam-Webster defines the term as “an amusing

or interesting item (such as a captioned picture or video) or genre of items

meme NFTs being “sold by their creators or the individuals seen in the memes

themselves”); Pesce, supra note 4.

See 7 Classic NFT Memes that Sold for A Lot of Money, NFTICALLY (Feb. 16,

2022), https://perma.cc/2G68-JKQW (praising NFT memes because “[m]emes are

an important part of internet culture”).

See “Elon Musk”, supra note 8.

See Stacey M. Lantagne, Famous on the Internet: The Spectrum of Internet Memes and

the Legal Challenge of Evolving Methods of Communication, 52 U. Rich. L. Rev. 387,

389 (2018).

Id.

Lantagne, supra note 13, at 389.

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2022 / Of Disaster Girl and Everydays 271

that is spread widely online especially through social media.”

The

Wikipedia entry of “meme” defines it as “a concept that spreads rapidly

from person to person via the Internet, typically as a form of humor.”

consistent quality of everything deemed a meme is replicability.

A meme,

at heart, must be replicated.

This has made the monetization of memes online challenging. Tradi-

tional copyright law considers monetization a quality of scarcity: people will

pay to obtain something they cannot get anywhere else.

Since a meme is

the opposite of scarce, finding a way to monetize meme-dom flummoxed

many. For most of the history of the internet, the owner of a meme who

wanted to make money from it had to license the meme in “traditional”

ways by putting it into the tangible physical world. This “fixed” the meme

according to how copyright law traditionally viewed a creative work: as in-

tellectual property physically embodied in a book, or a board game, or a

calendar.

So, the owner of Grumpy Cat made money with books and

stuffed animals.

The owner of Success Kid licensed the image for use in

advertising.

This offline merchandising was easier for some people to accomplish

than others. To license a meme, one had to own the copyright of the under-

lying work, such as the photograph, that became the meme. Copyright own-

ership attaches to the creator of a work, so the owner of a photograph is the

photographer. Accordingly, licensing a meme of one’s pet could be straight-

forward from a copyright perspective. Memes that were people’s children,

for better or worse, were also easy to monetize, as in Success Kid: the parent

who took the photograph could license the meme of their child. But even if

one held the copyright to a meme, identifying a monetary stream could be

difficult because it was difficult to chase down users to demand money on-

line where the meme was replicating quickly, and it was equally difficult to

Meme, Merriam-Webster, https://perma.cc/5UVS-NKWR (last accessed

Apr. 10, 2022).

Meme, Wikipedia, https://perma.cc/JD4M-9JE6 (last accessed Apr. 10, 2022).

See id.

See Roose, supra note 7.

See 17 U.S.C.A. § 102.

See Colleen Nika, Grumpy Cat Stuffed Animals – Spread the Disapproval This

Holiday Season, Refinery29 (Dec. 8, 2013, 6:30 PM), https://perma.cc/V7CJ-

F63A.

See Harry Ainsworth, Where Is the Boy from the ‘Success Kid’ Meme Now?, The

Tab, https://perma.cc/GC8E-TK9C (last accessed Mar. 13, 2022).

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272 Harvard Journal of Sports & Entertainment Law / Vol. 13

convince people to pay money for the meme in an offline context where it

was outside of its natural milieu.

If it was difficult to monetize your meme fame as a copyright holder, it

was much more difficult when a photo or video clip taken of you went viral.

There, the person in the photograph or video clip is not the copyright

holder; the photographer is.

Because they were not the copyright holders,

people appearing in memes lacked substantial control over the meme, be-

cause they did not even hold the traditional offline rights exclusively held by

a copyright owner, such as the right to distribute copies and prepare deriva-

tive works.

As Part VI will explore in more depth, we might call this type

of meme a “split-rights” meme, because the underlying photograph or

video’s copyright belongs to one entity, while the person depicted in the

photograph possesses separate publicity and privacy rights.

While a person

may attempt to block a copyright holder’s licensing of a photo based on

publicity or privacy rights in certain very limited circumstances,

these

rights do not give a subject the right to demand licensing of the photo.

The copyright holder exclusively controls whether it should be licensed.

The two interest-holders might not agree on monetizing the meme.

Of course, memes can and have been monetized and exploited without

the permission of either the copyright holder or subject. For instance, Sweet

Brown, the subject of the “Ain’t Nobody Got Time for That” video meme,

sued over a remix of the meme being sold for profit on iTunes.

(The case

was eventually dismissed without prejudice due to her failure to prose-

cute.

) Antoine Dodson, the subject of the “Bed Intruder” meme, similarly

See Kalhan Rosenblatt, A Meme Gold Rush? Classic Viral Images Are Selling as

NFTs for Thousands of Dollars, NBC News (Apr. 29, 2021, 5:39 PM), https://

perma.cc/KC68-VL78 (“As far as it goes with becoming a meme, it’s very difficult

to monetize that. We’ve spoken to numerous people who have become memes and

have had a lot of difficulty making money off their creations.”).

See Lantagne, supra note 13, at 400-01.

See 17 U.S.C. § 106.

See Lantagne, supra note 13, at 390.

See, e.g., Hepp v. Facebook, 14 F.4th 204 (3d Cir. 2021).

See Joshua Azriel, Photographers Sue Celebrities for Copyright Infringement, 24 J.

Internet L. 3, 7 (2020).

Licensing under normal circumstances would doubtless implicate one of the

rights, such as distributing the photograph or copying the photograph, that belongs

exclusively to the copyright holder, not to the person depicted in the photograph. See

17 U.S.C. § 106.

See Megan Rose Dickey, ’Ain’t Nobody Got Time for That’ Viral-Video Star Does

Have Time to Sue Apple, Bus. Insider (Mar. 12, 2013, 11:22 AM), https://perma.cc/

5ZNT-UAD2.

Wilkins v. Citicasters Co., No. 5:13-cv-00026 (W.D. Okla. Sept. 23, 2013).

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2022 / Of Disaster Girl and Everydays 273

had his viral news interview remixed into a for-profit song.

By and large,

the people who populate our memes have struggled to find ways to convert

that fame into money.

III. The Arrival of Non-Fungible Tokens

Non-fungible tokens, or NFTs, are “authenticated digital assets.”

some ways NFTs resemble cryptocurrency because they depend on the same

authentication procedure “through a decentralized system of nodes.”

However, each bitcoin is designed to be interchangeable with other

bitcoins

in the same way that each dollar bill is designed to be inter-

changeable with other dollar bills.

Conversely, each NFT is guaranteed to

be unique (hence, non-fungible).

If you own the NFT for a particular pho-

tograph of a kitten, what you really own is a token saying that you own that

kitten photograph.

There may be other versions of the kitten photograph

on the internet over which you have no ownership. Your NFT merely states

that you own a particular version, which is sometimes termed the “authen-

tic” or “original” version of the photograph.

It is important to be precise regarding what NFT ownership confers.

The person who owns an NFT attached to a photograph usually does not

own the copyright of the photograph

—

only the NFT that has been linked

to that particular digital copy of the otherwise generally available photo-

See MEMES, Part 7: Dead Giveaway, Endless Thread (Nov. 5, 2021), https://

perma.cc/NR83-BV9K.

26 No. 4 Cyberspace Lawyer NL 1.

Id.

See Rosenblatt, supra note 23.

See Oscar Holland, How NFTs Are Fueling a Digital Art Boom, CNN (Mar. 10,

2021), https://perma.cc/KB64-R7VW.

See 26 No. 6 Cyberspace Lawyer NL 1; Nicholas O’Donnell, No, You Probably

Can’t Sell Your Basquiat as an NFT, Apollo (May 12, 2021), https://perma.cc/

X9DV-YRXX.

The actual usefulness of NFTs in establishing ownership of art has been chal-

lenged. See James David (@jamesdavid), Twitter (Aug. 14, 2021) https://twitter.

com/jamesdavid/status/1426664478200930310 (“[I]f an NFT relies on a domain

that expires the image can be lost.”); Brian L. Frye (@brianlfrye), Twitter (Aug.

14, 2021, 5:25 PM), https://twitter.com/brianlfrye/status/1426656132664229889

(“No matter what anyone says, it has nothing but a nominal connection to any

artwork it purports to represent. An ‘NFT of an artwork’ is like a dollar bill ‘of

George W.’”).

See 26 No. 6 Cyberspace Lawyer NL 1 (“[W]hile you own the token with code

linked to the provably unique image or other work, others may have copies of the

underlying work. But only you can own that token.”).

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274 Harvard Journal of Sports & Entertainment Law / Vol. 13

graph.

NFTs themselves do not contain any content other than acting as a

“token[. . .] that . . . refer[s] to works of digital art by linking to them.”

“ ‘All [an NFT] is, is a URL saying ‘Look at this place on the internet.’’ ”

On the one hand, owning an NFT can be compared to owning a copy

of a book. Buying a book in a bookstore does not give the purchaser a copy-

right in the book; rather, it provides them with rights only to that particu-

lar copy. Everyone else can freely access other copies of that book in their

own bookstores and libraries. A cryptocurrency group recently learned this

the hard way when it bought a copy of a book in the belief that owning the

copy gave them adaptation rights.

On the other hand, however, buying an NFT cannot be compared to

buying a book, because it does not actually convey any object at all, digital

or physical.

Buying a book provides you with a copy of the book to take

home and read. Even buying a digital copy of a book provides you with a

digital item, according to certain terms of use. An NFT, by contrast, is more

like the receipt you get at a coat check or a valet. It tells people that you

own something located somewhere. That thing, however, is not in your pos-

session and could disappear, in the way that your coat might disappear from

a coat room, or your car might get lost at a valet.

In the real world, this

might be unlikely, but not impossible. In the digital world, scams that

might deprive you of your digital coat or car seem far more likely.

NFTs are often associated with digital artwork.

For instance, the art-

ist Beeple sold an NFT for his digital art piece “Everydays: The First 5000

Days” for $69 million.

The NFT market has come down somewhat from

See, e.g., Roose, supra note 7 (“Our lawyers want me to note that the NFT does

not include the copyright to the article or any reproduction or syndication rights.”).

Rizzo, supra note 2. See also Kevin Collier, NFT Art Sales Are Booming. Just

Without Some Artists’ Permission, NBC News (Jan. 10, 2022, 3:53 PM), https://

perma.cc/R2YV-6LBH (“NFTs are not art themselves but rather digital deeds.”).

This means that if the property referred to in the NFT disappears, the owner of the

NFT could end up with the equivalent of a broken link. See Rizzo, supra note 2.

Collier, supra note 41.

Adrienne Westenfeld, The Crypto Bros Who Thought They Bought the Dune Rights

Feel Misunderstood, Esquire (Mar. 1, 2022), https://perma.cc/7XGD-N8HH. The

group later insisted it did not think it bought the copyright, although this argu-

ment has been called “somewhat implausibl[e].” Rizzo, supra note 2.

See Rizzo, supra note 2.

See id.

See Edward Ongweso Jr., The NFT Ecosystem Is a Complete Disaster, Vice (Feb.

1, 2022, 1:43 PM), https://perma.cc/GL6P-8C9V.

See 26 No. 4 Cyberspace Lawyer NL 1.

See 26 No. 6 Cyberspace Lawyer NL 1; 26 No. 4 Cyberspace Lawyer NL 1;

Danny Nelson, Quarterback Patrick Mahomes Joins Gronk in NFL Blitz of NFT Mania,

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that high-water mark,

but well-known art auction houses like Christie’s

run NFT auctions as they would run auctions for any other kind of fine art.

But NFTs are more than just digital artwork. Anything can become an

NFT. The limit is your imagination.

The New York Times made an NFT of

a column about NFTs.

Jack Dorsey made an NFT of the first-ever tweet.

A group of authors decided to sell NFTs in a new series of fantasy stories

and, apparently, their accompanying fanfiction (and then backed off when

there was a backlash to the idea).

You can buy NFTs for basketball high-

light videos.

You can buy an NFT racehorse.

Digital NFT marketplaces

are recording monthly sales in the billions of dollars.

You can also buy NFTs for memes. Matt Furie, the creator of Pepe the

Frog, has been on a long march to recapture some meaningful control of his

creation. In that effort, he sold an early NFT of a Homer Simpson Pepe for

nearly $40,000

and an NFT of an early Pepe cartoon for around $1 mil-

lion.

A series of unauthorized “counterfeit” Pepes called “Sad Frogs” net-

ted $4 million in sales, charging around $450 a frog.

And the creator of

the Nyan Cat GIF made nearly $600,000 auctioning off an NFT.

Those

CoinDesk (Sept. 14, 2021, 8:26 AM), https://perma.cc/YG7A-Z9DT; Jacqui

Palumbo, First NFT Artwork at Auction Sells for Staggering $69 Million, CNN (Mar.

12, 2021), https://perma.cc/6TK9-RSK3; O’Donnell, supra note 37; Roose, supra

note 7; Rizzo, supra note 2.

See Raisa Bruner, Teen Artists Are Making Millions on NFTs. How Are They Doing

It?, Time (Sept. 7, 2021, 4:54 PM), https://perma.cc/MH3J-P4HG.

See Taylor Dafoe, Artist Dread Scott’s First NFT Is a Video of a White Man atop an

Auction Block. He’s Taking It Straight to Christie’s, Artnet News (Sept. 14, 2021),

https://perma.cc/D3Y8-6SXB.

See Ongweso, supra note 46 (“[T]he explicit goal here is to turn every inch of

our physical world

—

and any digital world

—

into a place where nearly every experi-

ence and thing is quantified, commodified, and privatized.”).

See Roose, supra note 7.

See Will Gottsegen, Jack Dorsey: Proceeds from Tweet NFT Will Go to Africa Relief

Charity, Decrypt (Mar. 9, 2021), https://perma.cc/4NGL-XGZB.

See Heloise Wood, YA Authors Shelve NFT Story After Social Media Backlash,

The Bookseller (Oct. 25, 2021), https://perma.cc/FE24-9P57.

See Roose, supra note 7.

See Taylor Lorenz, Digital Horses Are the Talk of the Crypto World, N.Y. Times

(May 12, 2021), https://perma.cc/LPD2-CGBX.

See Bruner, supra note 49.

Rosenblatt, supra note 23.

See Ekin Genc, Pepe the Frog’s Creator Nuked a $4 Million NFT Collection over

after “Pepe”].

See id.

See Holland, supra note 36; Rosenblatt, supra note 23.

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276 Harvard Journal of Sports & Entertainment Law / Vol. 13

already successful in the NFT space have focused on memes as a potentially

huge boon for creators. For example, in 2021, twelve-year-old coder and

successful NFT creator Benyamin Ahmed said, “I think memes have signifi-

cant value . . . [and] play a big part in this space.”

NFTically, “a venture

that helps brands, creators and artists to setup and launch their NFT mar-

ketplace,” highlighted NFT memes as “here to stay” because they “depict

ownership of human emotion on the digital medium.”

IV. NFTs, Memes, and Copyright Law

The set-up of meme NFTs pushes against the assumptions of copyright

law in two ways. First, discussions of NFT meme auctions assume that the

subject of the meme, rather than the copyright holder, has the right to auc-

tion off the meme NFT. Second, NFT auctions embrace virality instead of

scarcity, so memes that are more widespread and recognizable are considered

more valuable.

Before the rise of NFTs, the people depicted in memes often sought

compensation under copyright law theories.

They frequently assumed that,

as the meme’s subject, they had some legal right to control the meme and

receive compensation for its use. As Part II established, this is a persistent

misconception.

As we saw in Part II, many memes are “split-rights” situations. There

is a copyright holder who created the underlying work depicted in the

meme, but this is not the person depicted in the meme who is often referred

to as “the meme” themselves. Take a popular meme like Disaster Girl.

Disaster Girl depicts a four-year-old child, caught in the moment of smiling

in a devious way at a camera, while a house burns down in the background.

The image is often interpreted as the little girl reveling in the catastrophe

occurring behind her.

Because she did not take the photograph, Disaster

Girl has only a privacy and publicity right in the meme, meaning she has a

limited right to control the use of her image to be exploited, tempered by

generous First Amendment considerations in favor of permitting the public

Taylor Locke, This 12-Year-Old Coder Is Set to Earn Over $400,000 After About 2

Months Selling NFTs, CNBC (Sept. 1, 2021 1:29 PM), https://perma.cc/LUJ8-YX96

[hereinafter “12-Year-Old Coder”].

7 Classic Memes, supra note 11.

See Lantagne, supra note 13, at 402.

See Disaster Girl, Know Your Meme, https://perma.cc/JEC5-JWSH (last ac-

cessed Mar. 13, 2022).

See id.

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access to items in the public interest (including, arguably, memes).

This

publicity right interest might be enough to block licensing of the meme for

use in connection with product advertising. But generally, it would not be

sufficient to suppress circulation of the meme, because the copyright holder

has exclusive rights over reproduction and distribution.

Moreover, Disaster

Girl’s publicity right would not allow her to license the meme traditionally

for commercial exploitation, since traditional licensing would require repro-

duction and distribution of the photograph.

Confusion over how the rights in a photograph are divided is not lim-

ited to memes. There has been a rash of litigations in the past few years

involving paparazzi photographers suing the celebrities depicted in their

photographs for reposting them on social media.

This is another split-

rights situation, and the interests of the copyright holder and the subject

may not align. Moreover, the person depicted in the photograph feels that

they may have some inherent right over their likeness – for instance, to post

the photograph on their social media – that copyright law does not recog-

nize. The publicity and privacy rights of these subjects often play second

fiddle to the copyright holder’s copyright rights. Courts favor the copyright

holder’s right to publicize a photograph over the subject’s right to block it.

For example, a federal district court in California said in a 2015 decision:

Since Plaintiffs do not identify any use of their likenesses not wholly con-

tained within the photographs, Plaintiffs’ claims seek to prevent Defen-

dant from distributing the copyrighted work itself . . . Accepting

Plaintiffs’ interpretation without separating the likeness from the work

would . . . destroy copyright holders’ ability to exercise their exclusive

rights under the Copyright Act, effectively giving the subject of every

photograph veto power over the artist’s rights under the Copyright Act

and destroying the exclusivity of rights the Copyright Act aims to

protect.

6 Rudolf Callman, Callmann on Unfair Competition § 22:34. (4th ed.

2010).

See 17 U.S.C. § 106.

See id.

See Charles Trepany, Liam Hemsworth, Ariana Grande and More: Celebs Sued by

Paparazzi over Copyright, USA Today (Dec. 16, 2019), https://perma.cc/K239-

ABAN.

Maloney v. T3Media, Inc., 94 F. Supp. 3d 1128, 1137–38 (C.D. Cal. 2015),

aff’d, 853 F.3d 1004 (9th Cir. 2017); see also In re Jackson, 972 F.3d 25, 40 (2d Cir.

2020).

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Or, to put it in non-legal terms: “[D]espite being the unwilling sub-

ject of the photograph, I could not control what happened to it.”

The

paparazzi cases show that the photographer’s desire to hide a photograph

trumps the subject’s ability to publicize it.

The subject’s lack of legal rights also explains why the phenomenon of

“revenge porn” demanded a new statutory regime. Under copyright law,

unless the subject of explicit photographs took them, that person could not

control their dissemination. Recognizing the harm done to people depicted

in revenge porn, many states addressed the problem by passing a statute

giving greater power to the subjects of revenge-porn photographs to prevent

their use.

NFTs echo this power shift toward subjects in a less harmful context.

Anyone can mint an NFT of anything they want.

So, if the subject of a

meme wants to auction that meme as an NFT, that person can mint the

NFT and run the auction, as occurred with Disaster Girl,

Bad Luck

Brian,

and Scumbag Steve.

Because they minted and auctioned the NFT,

they receive the money

—

not the photograph’s copyright holder. Although

NFTs were originally touted by some commentators as “a powerful tool to

protect artists’ rights,” in the meme context it is not the artists but the

subjects who are benefitting.

NBC News has reported that “[A]n influx of

viral celebrities featured in classic memes have minted and sold their images

as NFTs . . . .”

Know Your Meme concurred that meme NFTs are being

successfully auctioned by the people depicted in them.

Commentators say

purchasing an NFT is analogous to getting an autograph from a famous

Emily Ratajkowski, Buying Myself Back, The Cut (Sept. 15, 2020), https://

perma.cc/4BDF-NWMQ.

In those cases, the paparazzi does not entirely wish to hide the photographs,

but they do want to block the subject from publicizing them.

See Christian Nistt´ahuz, Fifty States of Gray: A Comparative Analysis of ‘Revenge-

Porn’ Legislation Throughout the United States and Texas’s Relationship Privacy Act, 50

Tex. Tech L. Rev. 333, 348 (2018).

See Nicholas Rossolillo, A Complete Guide to Minting NFTs (Using OpenSea as an

Example), Motley Fool (Mar. 7, 2022), https://perma.cc/E2XR-YXD3 (detailing

the process with no requirement of proof of ownership over the file being minted).

See Zo¨e Roth Sells ‘Disaster Girl’ Meme as NFT for $500,000, BBC News (Apr.

30, 2021), https://perma.cc/7HBA-QJQK.

See Rosenblatt, supra note 23.

See Sweat, supra note 10.

See Clifford C. Histed, The Coming Blockchain Revolution in Consumption of Digi-

tal Art and Music: The Thinking Lawyer’s Guide to Non-Fungible Tokens (NFTs), K&L

Gates (Mar. 25, 2021), https://perma.cc/KP2A-AEED.

See Rosenblatt, supra note 23.

See Sweat, supra note 10

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person.

For meme NFTs, that famous person is the person depicted in the

meme, not the person who took their photograph.

Accordingly, Zo¨e Roth, the subject of the Disaster Girl meme, sold her

NFT for over $400,000 in 2021.

She commented that she was excited to

finally have a means to capitalize on her fame as a meme.

Similarly, Scum-

bag Steve, a meme of a young man interpreted to be a “scumbag” based on

his clothing and facial expression,

sold his NFT for $57,000.

After the

success of the meme’s NFT auction, a commentator tweeted that Scumbag

Steve was “finally get[ting] rewarded for having his face plastered as a meme

for a very long time.”

The real Scumbag Steve, a man named Blake Bos-

ton, agreed that he was “grateful” for the money raised.

“Anything’s bet-

ter than $0,” he said.

The subject of Overly Attached Girlfriend sold the

NFT for about $411,000,

and the subject of Bad Luck Brian sold his for

around $36,000.

It is not exactly clear what the copyright implications of these NFT

auctions are. For Disaster Girl and Scumbag Steve, the subjects’ parents took

the photographs, avoiding a split-rights conflict between subject and copy-

right holder.

While Overly Attached Girlfriend was the copyright holder

of her meme, Bad Luck Brian was not. Some meme subjects who have sold

NFTs may have gotten permission from the copyright holder. People have

created NFTs for a wide range of works to which they have dubious copy-

right claims, sometimes attracting attention from the original artist.

Pepe

the Frog’s original creator had a collection of “sad frogs” removed from an

See Rosenblatt, supra note 23; Ekin Genc, Overly Attached Girlfriend NFT Sells

for $411,000, Decrypt (Apr. 4, 2021), https://perma.cc/398F-GY22 [hereinafter

“Overly Attached Girlfriend”].

See Pesce, supra note 4.

See id.

Billy Baker, Savoring Time as the Internet’s Favorite Punching Bag, Boston (Nov.

24, 2011), https://perma.cc/2923-53N3.

See Sweat, supra note 10.

See id.

See Blake Boston Revisits Becoming ‘Scumbag Steve’ as We Catch Up with Him for the

Meme’s 10-Year Anniversary and Upcoming NFT Auction, Know Your Meme (2021),

https://perma.cc/6DX9-22SP [hereinafter “Blake Boston”].

See “Overly Attached Girlfriend”, supra note 82.

See Rosenblatt, supra note 23.

See id; “Blake Boston”, supra note 89.

There have also been trademark disagreements. See Tanzeel Akhtar, Nike and

Hermes File Lawsuits for Trademark Infringement as Fashion Collides with NFTs,

CoinDesk (Feb. 4, 2022), https://perma.cc/V4E2-ZEHR.

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NFT marketplace for allegedly violating his copyright.

The Basquiat es-

tate intervened to block an NFT auction that purported to sell the right to

destroy an original Basquiat work.

Miramax sued Quentin Tarantino over

his plans to offer Pulp Fiction NFTs.

OpenSea, “the most popular market-

place for NFTs,” found that “over 80 percent” of the works being minted

on its marketplace “were plagiarized works, fake collections and spam,” and

the situation has been described as “an art thievery quagmire of its own

making.”

Complaints from digital art websites regarding fraudulent NFTs

are increasing exponentially.

Whether or not NFTs constitute copyright infringement is not clear-

cut. We do not yet have any cases or rulings on the question. One theory is

that “creating the NFT in the first place may be copyright infringement”

because it produces an unauthorized reproduction of the work.

To mint an

NFT, you have to upload the file that your NFT will point back to as the

“image asset.”

100

If you do not have the rights to make a copy of that file,

then reproducing it to upload it for the purpose of minting the NFT could

be considered copyright infringement in and of itself, as the copying of a

copyrighted work is a right that belongs exclusively to the copyright holder

to control.

101

However, the NFT itself is arguably “irrelevant” to copyright infringe-

ment, since the NFT itself has no content within it

—

it is simply a receipt

for a particular copy of the work.

102

The uploading of the file to connect to

the NFT might be copyright infringement

—

but that is not the NFT.

Accordingly, as long as the NFT is being sold without representing that it

includes any of the exclusive rights of copyright, the minting process of the

See “Pepe”, supra note 59.

See O’Donnell, supra note 37; Rizzo, supra note 2.

Miramax, LLC v. Quentin Tarantino, Dkt. No. 2:21-cv-08979 (C.D. Cal.

Nov. 16, 2021).

See Ongweso, supra note 46.

See id.; see also Collier, supra note 41 (“[T]hanks to the explosion of the NFT

art market, thieves have started stealing her work at a jaw-dropping rate.”).

See O’Donnell, supra note 37. Keith Estiler, Cj Hendry Destroys Basquiat and

Warhol Artwork in NFT Stunt, Hypebeast (Apr. 16, 2021), https://perma.cc/

WFV4-RJ2S.

100

See Sumi Mudgil, How to Mint an NFT, Ethereum Found. (Apr. 21, 2021),

https://perma.cc/JP24-NXSA.

101

See 17 U.S.C. § 106. There are exceptions which allow people to make copies

without the copyright holder’s consent, such as for personal archival purposes, or for

fair use. See 17 U.S.C. § 107. Such exceptions seem unlikely to apply in the explic-

itly commercial marketplace of NFTs.

102

Collier, supra note 41.

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NFT might have implicated copyright but the mere sale of the NFT argua-

bly does not violate any intellectual property law, since it does not involve a

further reproduction of the file.

103

At least some of the meme NFTs appear

to explicitly disclaim ownership of the copyright of the meme, attempting

to disconnect the meme from copyright altogether.

104

At any rate, the terms

of use of the NFT platform being used for many of these auctions explicitly

states that the NFT’s sale does not confer any copyright, that there may be

other claims on the image asset connected to the NFT, and that the platform

itself will not be liable for any copyright or trademark infringement con-

nected to the NFT.

105

The control and compensation that the rise of NFTs has given to meme

subjects raises whether a wider ambit of control could, or should, be given

to the subjects of photographs more generally. Should we reconsider how the

legal system traditionally values the rights of the copyright holder over the

rights of those subject? The Supreme Court’s first decision recognizing the

photographer as the sole copyright holder of a photograph, Burrow-Giles

Lithographic Co. v. Sarony,

106

took place in a world in which photography was

a highly specialized and complicated profession. Photographs were scarce

luxuries that those who could afford them deliberately chose to have taken.

Indeed, the Court’s description of the process of taking the photograph of

Oscar Wilde at issue sounds more like painting a portrait: it involved “se-

lecting and arranging the costume, draperies, and other various accessories

. . . arranging the subject so as to present graceful outlines, arranging and

disposing the light and shade, [and] suggesting and evoking the desired

expression.”

107

In such an atmosphere, equating the photographer with a

painter as the sole creator of the work made sense.

Today, everyone with a smartphone is a photographer, able to snap a

photograph in seconds just by reaching into a pocket. The vast majority of

photographs do not involve the painstaking, time-intensive process that Os-

car Wilde’s photographer followed in Burrow-Giles.

108

Given how radically

the medium of photography has changed, perhaps the law should re-evaluate

how it views the rights to a photograph. While the quick, easy, and cheap

103

See also “Elon Musk”, supra note 8 (“[B]ecause of the legal gray area that

NFTs exist in, it’s not clear whether the use of this image infringes on any potential

104

See Rosenblatt, supra note 23.

105

See Terms of Service, Found. Labs (Apr. 8, 2022), https://perma.cc/MSJ6-

3LX8.

106

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).

107

Id. at 60.

108

See id. at 54.

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act of taking a photograph requires little effort for the photographer, it

grants them enormous power over the person depicted in the photograph,

even when it was taken without their knowledge. This was a far more unu-

sual occurrence when photography was a time-intensive, heavily posed

art.

109

The revenge porn situation might most starkly challenge our assump-

tion that the person who cares most about a photograph is its taker. There,

it is very clear that the person depicted in a photograph is more greatly

harmed by its unfettered use than is the copyright holder. Like the NFT

market’s greater grant of control to the meme’s subject, state laws giving

revenge porn victims power over the dissemination of their photographs

urge us to consider whether today’s power imbalance between photographer

and subject deserves legal acknowledgement.

The control and compensation that NFTs have afforded meme subjects

also invites questioning whether we should worry about compensating peo-

ple who become memes. Unlike athletes and celebrities, who have recourse

to other revenue streams, people who become memes seldom receive any

compensation.

110

There is an argument that it is unnecessary to compensate

anyone in memes. If copyright law is about granting property rights in crea-

tive output to incentivize creativity,

111

the people depicted in memes typi-

cally do not need that incentive because they generally become memes

inadvertently. Very few meme subjects were consciously involved in creating

their memes. Copyright law views the photographer who took the underly-

ing meme photograph as the creator needing creative incentive, not the

meme subject. Further, memes most often arise organically from the collec-

tive action of the internet, meaning no individual person requires a financial

incentive to produce a meme.

112

In fact, the internet has shown that people seldom need an incentive for

the initial act of creativity. Social media is full of creators who post without

payment. What people seem to want is to be compensated for an act of

creativity that the world deems valuable after it has come into being. This

compensation does not line up with the rewards created by copyright law.

People create TikTok dances for free all the time but hope to be compen-

109

Emily Ratajkowski has written movingly of her loss of control of her image

and the emotions connected to her body’s exploitation by photographers. See supra

note 72.

110

See Nelson, supra note 48 (noting that NFTs are “another method to expand

athletes’ personal brands”).

111

Tonya M. Evans, Cryptokitties, Cryptography, and Copyright, 47 AIPLA Q.J.

219, 226 (2019) [hereinafter “Cryptokitties”].

112

See Lantagne, supra note 13, at 412-13.

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sated if one of those dances gains pervasive notoriety.

113

But since copyright

law does not protect individual dance moves, many viral dance moves may

not be copyrightable. Moreover, copyright law provides value by creating

scarcity. It incentivizes creators by letting them control reproduction and

dissemination of their creative work. However, on the internet, there is little

value until the creative work is uncontrollably reproduced, giving it viral

fame. Therefore, to the extent copyright is meant to incentivize creativity, in

the digital world it does so imperfectly. Much of the creativity of the in-

ternet exists outside of copyright law’s value judgments.

The internet has accordingly exposed that our intellectual property sys-

tem might understand compensation incorrectly. Our system is ineffective

at making people feel compensated for creativity society deems valuable.

Take, for example, the recent spate of litigation against videogames based on

their use of famous dance moves performed by players’ avatars. In one case,

Alfonso Ribeiro sued Fortnite for copying his well-known “Carlton

Dance.”

114

The Copyright Office refused to register the dance move, on the

ground that it was a “simple routine” that could not be copyrighted.

115

The

Carlton Dance clearly had value for its audience because the videogame de-

velopers wanted to exploit it, but copyright law permitted that exploitation.

In another case over a video game’s use of a dance routine that the

that it appeared Black creators were disproportionately affected by appropri-

ation of uncopyrightable work in a way that devalued their creativity. He

stated that “Epic has consistently sought to exploit African-American talent

in particular in Fortnite by copying their dances and movements.”

116

Black

creators on TikTok went on strike in the summer of 2021, “[t]ired of not

receiving credit for their creativity and original work

—

all while watching

white influencers rewarded with millions of views performing dances they

didn’t create.”

117

American intellectual property law has a long history of

oppressing and exploiting Black creators,

118

from refusing to allow enslaved

113

See Cache McClay, Why Black TikTok Creators Have Gone on Strike, BBC News

(July 15, 2021), https://perma.cc/NE5P-2RVH.

114

See Ribiero v. Take-Two Interactive Software, Inc., Compl., Dkt. No.

2:2018cv10417 (C.D. Cal. Dec 17, 2018).

115

See Ribiero, Mot. To Dismiss, Dkt. 2:2018cv10417 (C.D. Cal. Feb. 13,

2019).

116

Baker v. Epic Games, Inc., Compl. 35, Dkt. No. 2:19CV00505 (C.D. Cal.

Jan. 23, 2019).

117

Sharon Pruitt-Young, Black TikTok Creators Are on Strike to Protest a Lack of

Credit for Their Work, NPR (July 1, 2021), https://perma.cc/UQ4A-AZC9.

118

See id. (“We can take any historical period and look at popular culture . . .

and see the ways in which white folks who have access to mainstream capital and

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people to hold patents to their inventions

119

to letting Rock-n’-Roll labels

take the work of Black artists and attribute it to white artists under the

statutory compulsory licensing system.

120

Looking at the example of dance,

Anthea Kraut found that “[w]ith few exceptions, the names of non-white

dancers are not present, or at least not easily detectable, in official copyright

archives from the first two-thirds of the twentieth century.”

121

In relation to

Black creators’ TikTok strike, Sarah J. Jackson described how:

Since the founding of this country, Black art forms, Black dance forms,

have been appropriated, watered down, repackaged and used to make

money by white folks . . . And so, if you put it in that context of that

longer history of basically stolen labor and stolen creativity, then you start

to see why it matters to people and why it’s important to people to be

credited for the origins of these things.

122

This story continues today in the digital context. The originators of

popular internet content often do not receive compensation for it under our

existing intellectual property system, and the brunt of this is often suffered

by Black artists.

123

A larger reckoning with who the copyright system com-

pensates is long overdue. In a surprising way, meme NFTs have become part

of that battle by giving compensation to whom the internet values, rather

than whom the law prioritizes.

mainstream media and other forms of access were drawing inspiration from the art

forms and creative forms of Black folks.”).

119

See Brian L. Frye, Invention of A Slave, 68 Syracuse L. Rev. 181, 181-82

(2018).

120

See Neela Kartha, Digital Sampling and Copyright Law in a Social Context: No

More Colorblindness!!, 14 U. Miami Ent. & Sports L. Rev. 218, 232-33 (1997); see

generally K.J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protec-

tion, 21 Hastings Comm. & Ent. L.J. 339 (1999); Vincent R. Johnson II, Sampling

as Transformation: Re-Evaluating Copyright’s Treatment of Sampling to End Its Dispropor-

tionate Harm on Black Artists, 70 Am. U. L. Rev. F. 227 (2021).

121

Anthea Kraut, Choreographing Copyright Race, Gender, and Intel-

lectual Property Rights in American Dance 128 (2015) (quoted in Gia Velas-

quez, No Credit Where Credit Is Due: Exploitation in Copyright, 99 J. Pat. &

Trademark Off. Soc’y 693, 702 (2017)).

122

Pruitt-Young, supra note 117.

123

See Shamira Ibrahim, How the Internet Became a Playground for Exploiting Black

Creators, Vice, https://perma.cc/A45A-3QQD (last accessed May 7, 2022).

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A. Scarcity vs. Virality

scarcity.

124

When the printing press

—

the World Wide Web of its day

—

threatened to make information more accessible than ever, copyright was

created to give printers the power to prevent copying.

125

The effect was to

create artificial scarcity when virality threatened.

126

create value.

127

When the online peer-to-peer music sharing network Nap-

ster was developed to make music distribution easier than ever, it proposed

making all music available to its users for a monthly flat fee. This would

have brought in a considerable amount of money to be divided among the

stakeholders: as one commentator put it, “more money than ever dreamed

of.”

128

However, the mainstream music industry clung to the idea that

maintaining the scarcity of music was necessary to retain its value.

129

Artists

and record labels successfully sued Napster for copyright infringement,

eventually leading it to shut down.

130

The same desire for scarcity underlies

the Motion Picture Association’s longstanding concern with piracy. If the

movie or television show can easily be found in free or cheap unauthorized

copies, then the copyright’s value falls.

131

124

See Jake Linford, Copyright and Attention Scarcity, 42 Cardozo L. Rev. 143,

145 (2020).

125

See id. at 156.

126

See id. at 146.

127

See Roose, supra note 7.

128

Michael Gowen, Requiem for Napster, PC World, (May 18, 2002, 12:17 PM),

https://perma.cc/SU8N-G87Y.

129

See Stephen Dowling, Napster Turns 20: How It Changed the Music Industry,

BBC (May 31, 2019), https://perma.cc/Z8CH-BNR (quoting Rolling Stone journalist

Steve Knopper: “[The record business] sure made it unnecessarily hard for them-

selves for a long time.”); see also Casey Rae-Hunter, Better Mousetraps: Licensing, Ac-

cess, and Innovation in the New Music Marketplace, 7 J. Bus. & Tech. L. 35, 40 (2012)

(“The mainstream recorded music industry was slow to understand and exploit the

dynamics of the emerging digital music marketplace[,] . . . [preferring a] return to

the old system of scarcity and near-exclusive control of distribution.”); cf. Daniel J.

Gervais, Towards a New Core International Copyright Norm: The Reverse Three-Step Test,

9 Marq. Intell. Prop. L. Rev. 1, 7 (2005) (suggesting that the record companies

move forward with digital music by “abandon[ing]. . .the scarcity paradigm”).

130

This Day in History (March 6, 2001): The Death Spiral of Napster Begins, His-

tory, https://perma.cc/DMH5-HP66 (last visited July 11, 2022).

131

See “Cryptokitties”, supra note 111, at 249.

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NFTs have been described as representing the ability to “create[ ] digi-

tal scarcity,”

132

which heretofore has been a challenge on the internet.

133

One article describes the NFT phenomenon as follows: “Buyers require . . .

representations to ensure that their NFT is legitimate and rare, rarity being

one of the most valuable qualities of these assets.”

134

While some NFT mar-

ketplaces state that creators “may have to represent . . . that the work [in

question] is scarce,”

135

in practice this requirement is nonsensical. The al-

leged rarity of NFTs is entirely fake. The NFT is rare and scarce; the work it

is attached to, by contrast, can often be found in many other places in the

identical form as the version linked with the NFT.

136

The same article even

acknowledges this: “[W]hen an artist sells a piece of NFT art, it is not the

actual underlying artwork that is being sold. Rather, it is a copy of the art,

with the NFT representing ownership of the copy.”

137

All other copies of

the art continue to exist, and, in the world of memes, continue to be copied

and shared at will.

138

Instead of creating scarcity, NFT markets appear to prioritize virality

as a source of value, especially when it comes to memes. The more viral a

meme is, in the NFT meme economy, the greater the value of the meme.

Ross Blum, the “Chief Operating Officer at Quidd, the world’s largest so-

cial marketplace for digital goods and media technologies,”

139

gave the fol-

lowing description:

But that one-of-one card potentially only has value . . . based on [ ] the

rareness, and there is no sort of context, there is no community, there is no

132

Katya Fisher, Once Upon a Time in NFT: Blockchain, Copyright, and the Right of

First Sale Doctrine, 37 Cardozo Arts & Ent. L.J. 629, 631 (2019); see also Holland,

supra note 36.

133

See Roose, supra note 7.

134

Chris Bennett & Cody Koblinsky, Non-Fungible Tokens: Emerging Issues in the

Emerging Marketplace, DLA Piper (Mar. 30, 2021), https://perma.cc/K4H7-T9RW.

135

26 No. 4 Cyberspace Lawyer NL 1.

136

See, e.g., Dread Scott: White Male for Sale, Cristin Tierney (2021), https://

perma.cc/SD5T-MM8H.

137

26 No. 4 Cyberspace Lawyer NL 1.

138

See Ross Blum et al., Panel 1: Digital Art and Digital Collectibles, 37 Cardozo

Arts & Ent. L.J. 567, 569-70 (2019); Chris Berg, Non-Fungible Tokens and the New

Patronage Economy, CoinDesk (Mar. 22, 2021), https://perma.cc/V6Y2-LBNE. But

see 26 No. 4 Cyberspace Lawyer NL 1 (“As with any collector’s item, uniqueness

and scarcity are the two most important attributes that make NFT art valuable.

NFT art will only attract demand if uniqueness and scarcity are guaranteed. Cre-

ators will have to make the necessary representations for buyers to trust that they are

getting a one-of-a-kind product.”).

139

Blum, supra note 138, at 568.

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story behind it and it’s just rivalries, it’s not necessarily different than any

other sort of unique object out there, say, your Grandma’s hand-knit

sweater or a rare piece of art that your friend made. But the notion that

these things have value is really brought together by appearance, belong-

ing, the interest and . . . the incentive structure of wanting to own these

digital objects.

140

In other words, the more well-known the underlying work of an NFT

is, with a community of people interested in it, the more value the NFT has.

In the case of memes, if you can find the meme everywhere, then it is worth

money: “[E]stablished, years-old memes seem to be the most in demand

among NFT buyers.”

141

Given that value is found in a meme’s popularity, and that the copy-

right status of memes is frequently uncertain, the sale of a meme NFT typi-

cally does not seek to restrict access to the meme.

142

For instance, the Nyan

Cat GIF NFT was sold with a simple “limited, worldwide, non-assignable,

non-sublicensable, royalty-free license to display the Digital Artwork.”

143

This limited right of display is what many other people around the world

were already exercising when they used or reposted the GIF. The purchaser

has the right to resell the NFT but otherwise is not allowed to make “com-

mercial use” of the GIF.

144

Meme NFTs often do not involve granting any of

the exclusive rights of copyright, because the split rights situation means

the NFTs are often sold by the subject, not the copyright holder. The pos-

sessor of the NFT accordingly “cannot prevent the spread or use of the

meme,”

145

even if a meme could be put back in its box.

146

But it appears that meme NFT owners do not want the ability to re-

strict dissemination. They usually wish to encourage further viral distribu-

tion of the meme, because creating scarcity of the meme would detract from

the NFT’s value.

147

In fact, some have seen meme NFTs as a way of reviving

“dead memes,” or “meme[s] that w[ere] once popular but ha[ve] since lost

140

Id.

141

Rosenblatt, supra note 23.

142

See “Overly Attached Girlfriend”, supra note 82 (“Morris cannot prevent any-

one from spreading the meme, nor can the new owner of the NFT.”).

143

XQ42.

144

Id.

145

See Rosenblatt, supra note 23.

146

See “Overly Attached Girlfriend”, supra note 82 (“[S]elling memes as NFTs

will only give these creators control over their finances, not the memes

themselves.”).

147

This seems to be different from the holders of NFTs of other kinds of creative

works, who seem to resent their creative properties proliferating elsewhere on the

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[their] stature.”

148

An expensive NFT sale attracts attention and brings a

meme back into the “spotlight.”

149

Again, the NFT causes the opposite of

scarcity.

Some NFT meme markets try to create the impression of scarcity by

taking a ubiquitous meme like Pepe the Frog

150

and creating spin-off “rare

Pepes.”

151

However, even these are taking advantage of the widespread viral

fame of the original underlying meme. Many NFT meme buyers lean into

the fact that a meme NFT only has value because it viral.

152

It has been

observed that shortly after a celebrity with a large online following, like

Elon Musk, posts a meme on Twitter is a prime time to take advantage of

the increased value brought by such exposure by quickly minting an

NFT.

153

The trend toward virality in NFT markets goes against the instinct

underlying copyright law for centuries. After all, who would pay for some-

thing that can be obtained for free? The obvious answer is no one. Often,

when someone buys an NFT, they are not only or even mostly paying for a

digital file that is freely available elsewhere. Instead, NFTs often come pack-

aged with other perks and features.

154

For instance, some NFTs are sold with

ongoing royalty payments or dividend streams.

155

Others permit further

internet. See Victor Tangermann, Person Furious That Someone Right Click Saved Their

Precious NFT, Futurism (Nov. 5, 2021), https://perma.cc/VS96-WT77.

148

See Rosenblatt, supra note 23.

149

Id.

150

See Pepe the Frog, Know Your Meme, https://perma.cc/72CG-WWMC (last

visited Apr. 21, 2022).

151

See Corin Faife, Meme Collectors Are Using the Blockchain to Keep Rare Pepes Rare,

Vice (Jan. 27, 2017), https://perma.cc/63XY-SYQP. Arguably, these are bad Pepes,

because the good, useful memes are the ones everybody knows.

152

See also Rizzo, supra note 2 (noting that some people “are already launching

NFT projects governed by Creative Commons licenses,” which, “[a]t their least

restrictive, . . . allow artists to waive all rights to their work, making their images

freely available to anyone to use or adapt for any purpose”).

153

Cf. “Elon Musk”, supra note 8.

154

See Steve Kaczynski & Scott Duke Kominers, How NFTs Create Value, Harv.

Bus. Rev. (Nov. 10, 2021), https://perma.cc/A7VQ-L4R9 (“It’s not uncommon to see

creators organize in-person meetups for their NFT holders, as many did at the re-

cent NFT NYC conference. In other cases, having a specific NFT in your online

wallet might be necessary in order to gain access to an online game, chat room, or

merchandise store. And creator teams sometimes grant additional tokens to their

NFT holders in ways that expand the product ecosystem: owners of a particular goat

NFT, for example, were recently able to claim a free baby goat NFT that gives

benefits beyond the original token; holders of a particular bear NFT, meanwhile,

just received honey.”).

155

26 No. 6 Cyberspace Lawyer NL 1.

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commercialization of the art connected to the NFT, such as merchandis-

ing.

156

Bands sell NFTs that come with vinyl albums or concert tickets.

157

The Red Sox auctioned an NFT “that comes with an exclusive experiential

VIP package, including the opportunity to throw the ceremonial first pitch

at Fenway Park, two tickets to a Red Sox home game, a stadium tour and a

meet and greet with Red Sox alumni.”

158

As noted already, Quentin Taran-

tino planned to auction NFTs that would come with “previously unknown

secrets” about the movie Pulp Fiction.

159

The NFT of a Basquiat drawing

famously purported to include the right to destroy the one original of the

physical work.

160

Arguably, it is those other perks and features that provide

the NFT’s economic value, and the “one true original” billing is really just a

red herring. While the transaction might be described as the purchase of an

NFT, you are often really paying for a vinyl record or event tickets. You can

hardly get more old-school than that.

However, NFTs are usually discussed as if they are not often about

these physical perks. Instead, commentators have praised NFTs for “en-

abl[ing], for the first time, verifiable digital scarcity

—

an elusive techno-

logical characteristic in the world of Web 2.0.”

161

This discussion frames

NFTs in terms of their promise of owning the true original digital version of

a work. But that raises the question of why such ownership is considered

appealing in the first place. Why would owning an “original” with possibly

millions of identical versions matter?

In one sense, this resembles the debate over art forgery.

162

If a copy of a

masterpiece is virtually indistinguishable from the original, who is harmed

by the fact that is it not the original? If the value of an original piece of art

lies in its originality or the fact that it was touched by a particular person,

then if so, why?

163

Forgers have explicitly forced this question by releasing

156

See 26 No. 4 Cyberspace Lawyer NL 1.

157

See Roose, supra note 7.

158

Thomas Harrigan, Bid on Limited-Edition Fenway Park NFTs, Major League

Baseball (Aug. 9, 2021), https://perma.cc/RWJ9-QJGL.

159

Miramax, LLC v. Tarantino, Compl. 1, Dkt. No. 21-cv-08979 (C.D. Cal.

Nov. 16, 2021).

160

See O’Donnell, supra note 37.

161

“Cryptokitties”, supra note 111, at 220.

162

See Blum, supra note 138, at 571.

163

See, e.g., Max Horberry, The Artist Beneath the Art Forger, N.Y. Times (Feb. 21,

2020), https://perma.cc/8YCP-G4JN (noting that forgery “champion[s]” the idea

that art has “intrinsic merit” and does not need to be deemed an original copy in

order to be appreciated and have value); Kevin Wiesner, 1,000 Warhol Artworks Are

on Sale for Just $250 Each. But Only One is Real, CNN (Oct. 25, 2021), https://

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NFTs of their forgeries.

164

NFTs attack the question head-on. In the world

of NFTs, you do not just get a forgery. You get a digital file identical to

every other digital copy of that file. Some commentators have remarked that

NFTs can “protect investors by helping establish provenance of art

works”

165

and anticipate that they will bring about the return of the scarce

and controllable world in which “everything is on blockchain and you’re not

able to create [ ] copies anymore.”

166

However, at heart, NFTs ask the ques-

tion of why we should care about copying when the copy and the original

are indistinguishable. Is the idea of scarcity worth so much to us that we

would pay six figures for a digital cat, just because we’re told it is unique,

even if we know the same image can be found practically everywhere

online?

167

The answer might be that it is not the scarcity, but the community,

that creates the value. Those in the art space of the NFT world have ac-

knowledged that it is not the aesthetics of the art but rather the community

surrounding the art that decides its value.

168

Indeed, the most valuable

NFTs often come with “community spaces”: access to members-only exclu-

sive places, either on Discord servers or in real life.

169

Memes are primed to be commodified in a space where value is based

on community. A meme, unlike an individual piece of art, definitionally

relies on community to exist because it is predicated on virality. If some-

thing becomes a meme because it is replicated and shared, then memes can-

not exist outside of a community. One can try to create something that looks

like a meme, such as a photo with text overlaid, but it is not a true meme

until it is replicated. Indeed, some NFT artists have noted that art bought

and sold via NFTs qualitatively resembles memes because of its reliance on

community.

170

One artist described the NFT community as “mycelium

—

the interconnected fungus network that forms a community in the way tree

perma.cc/6PJ5-URJQ (noting the criticism that the art industry cares more about

the pointlessness of possessing an original copy than it does about “the art itself”).

164

See, e.g., Sarah Cascone, Master Forger Wolfgang Beltracchi Shows Off His Skills

(and Pointed Humor) with a New NFT Collection, Artnet (Oct. 11, 2021), https://

perma.cc/9JUZ-X38A.

165

26 No. 6 Cyberspace Lawyer NL 1.

166

Tonya M. Evans et al., Panel 2: Art Law and Blockchain, 37 Cardozo Arts &

Ent. L.J. 589, 601 (2019).

167

The answer is, apparently, yes. See “Cryptokitties”, supra note 111, at 250.

168

Cf. Bruner, supra note 49.

169

Reply All, #185 The Rainbow Chain, Gimlet Media (Apr. 7, 2022), https://

perma.cc/R7Y6-U7M8; see also Larry Dvoskin, Why Community Is the Secret to NFT

Success, Rolling Stone (Jan. 17, 2022), https://perma.cc/9SJG-U4TH.

170

See “12-Year-Old Coder”, supra note 62.

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roots interconnect with each other.”

171

Successful NFT artists use the NFT

community as a substitute for the traditional model of agents or manag-

ers.

172

Without that connection to community, it can be difficult to join the

NFT goldrush.

173

“[N]urturing the community is exactly how you get

ahead in the NFT space.”

174

The community aspect drives people to

purchase your NFTs out of a desire to support you and belong to your digi-

tal community.

175

V. Envisioning a New Way of Thinking About Creative Value

The huge amounts of money currently being spent on NFTs creates the

idea of an exciting and unpredictable new commodity fundamentally differ-

ent from traditional media. The desire to participate in this action by

purchasing an NFT seems less connected to the particular file the NFT is

attached to and more to the hype around the NFT market as a cash cow.

This is like buying a book not because you want to read that particular

book, but because you are speculating in the book’s after-market. In the first

few months of 2021, more than $2 billion was spent on NFTs.

176

By the

third quarter of 2021, it was almost $11 billion.

177

Fundamentally, however, NFTs are not new. They are a form of specu-

lation and investment such as has existed for millennia. People buy NFTs

hoping they are “good investment[s]” that “will increase in value.”

178

These

buyers are not necessarily admirers of the underlying work, but investors.

Some people have compared this to the Beanie Babies craze of the 1990s.

179

Others have classified it as a pyramid scheme.

180

At best, they are “as risky

as gambling.” Some claim that “few financial professionals would recom-

171

See Dvoskin, supra note 169.

172

See id.

173

See id.

174

Will Fan, Leading in the New World of NFTs: Creating Community and Intrinsic

Value, Forbes (Jan. 6, 2022), https://perma.cc/JXV8-LC47.

175

See id.

176

See Anthony J. Dreyer & David M. Lamb., Can I Mint an NFT With

That?: Avoiding Right of Publicity and trademark Litigation Risks in the

Brave New World of NFTs (2021), available on Westlaw at 2021 WL 1850623.

177

See Collier, supra note 41.

178

26 No. 6 Cyberspace Lawyer NL 1.

179

See Roose, supra note 7; cf. Ongweso, supra note 46.

180

See Jacob Kastrenakes, I Spent Hours Waiting to Find Out What an NFT Looks

Like IRL, The Verge (Nov. 6, 2021), https://perma.cc/9JJA-BCG6.

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292 Harvard Journal of Sports & Entertainment Law / Vol. 13

mend” cryptocurrency in general.

181

Critics have accused them of “being

used to propose increasingly more nebulous, abstract, and unwieldy catego-

ries of objects and goods and services.”

182

At some point, the speculative

bubble will likely burst and the prices will sink. There will be winners and

losers, and the world will move on to the next big thing.

183

Indeed, there is

some indication the market may have already started to crash. Trading on

the biggest NFT marketplace dropped by 80% in a single month in the

spring of 2022, and on average NFT prices have declined nearly 50% from

their peak a few months earlier.

184

The number of accounts trading in NFTs

in March 2022 was about half the number doing so in November 2021.

185

Though they may not be a fundamentally new phenomenon, the rise of

NFTs nonetheless presents an opportunity to rethink how we view creativ-

ity. In a world in which the scarcity of creative properties is increasingly

challenging to manufacture, large copyright holders have spent enormous

amounts of money to preserve “artificial scarcity” and therefore profits.

186

Some have lobbied against the proliferation of their works online

187

and

sought more and more technological controls to try to cabin replication.

Most recently, a new SMART Copyright Act has been proposed to “reduce

online theft.”

188

In this context, NFTs have been described as the way for-

ward for artist compensation. They have been touted as “a much-needed

way” for creators to monetize their work online

189

and greeted as an equal-

izer in “copyright-intensive industries” that are often controlled by a few

powerful entities.

190

181

See Alyson Krueger, How Much Real Money Can You Make From Virtual Art?,

N.Y. Times (Mar. 12, 2022), https://perma.cc/8GV8-N24L; see also Rizzo, supra note 2.

182

See Ongweso, supra note 46 (“[T]he greatest predictor of any NFT’s value

isn’t its appearance but its previous price points. None of this sounds like a func-

tional market so much as a mad grab for profit.”).

183

Cf. Krueger, supra note 181 (“[W]hat many NFT artists create or collectors

invest in will be worth little or nothing in the long term.”); see also O’Donnell, supra

note 37 (describing NFTs as “Dada-esque: it’s equivalent to presenting a poster of

the Mona Lisa as a unique work of art”); Westenfeld, supra note 43 (noting that

some market participants “don’t even know what they’re buying”).

184

See Miles Kruppa et al., The Great NFT Sell-Off: Has the Digital Collectibles

Craze Hit its Peak?, Fin. Times (Mar. 10, 2022), https://perma.cc/NK8P-GEXU.

185

See id.

186

See Jake Linford, Copyright and Attention Scarcity, 42 Cardozo L. Rev. 143,

143 (2020).

187

Cf. David Nelson, Note, Free the Music: Rethinking the Role of Copyright in an

Age of Digital Distribution, 78 S. Cal. L. Rev. 559, 568 (2005).

188

189

26 No. 6 Cyberspace Lawyer NL 1.

190

“Cryptokitties”, supra note 111, at 220.

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Consider, for example, NFTs’ much-lauded inclusion of resale rights.

Many NFTs are sold with resale rights attached. Resale rights guarantee the

artist will receive a cut of any future sales, or resales, giving the artist a right

to some of the value generated by their work’s appreciation.

191

[V]isual artists do not generate considerable income from the reproduction

and communication rights that are available to other creators under copy-

right law. The artist’s resale right seeks to address this financial disparity

by ensuring that visual artists receive a portion of the price paid for their

tangible artwork each time it is resold.

192

As Paris Hilton’s team weighed in, “[B]lockchain technology will al-

low artists to get paid on secondary sales as well. That’s never happened

before and it is mindblowing how much that can change things for art-

ists.”

193

The NFT market did not invent including resale rights in art sales.

Artists including Grant Wood and Robert Rauschenberg began lobbying

for it in the 1940s and 50s.

194

Mandatory resale rights are common in many

countries,

195

but Congress refused to pass laws mandating them in the

United States.

196

When California tried to pass its own statute granting

artists a resale right, it was held to be pre-empted by federal law.

197

While

artists could theoretically include resale rights in their contracts, few have

done so successfully.

198

The resale right that failed to flourish in the offline world has become a

praised feature of the NFT world. NFTs’ digital contracts make the resale

right easier to police than in the offline world.

199

However, the challenges of

enforcing such contracts offline may apply with equal force to online sales.

200

191

See Blum, supra note 138, at 582; “12-Year-Old Coder”, supra note 62; Hol-

land, supra note 36; Pesce, supra note 4; Roose, supra note 7; Rizzo, supra note 2.

192

Zhao Zhao, Fulfilling the Right to Follow: Using Blockchain to Enforce the Artist’s

Resale Right, 39 Cardozo Arts & Ent. L.J. 239, 244 (2021).

193

Team Paris, I’m Excited About NFTs

—

You Should Be Too, Paris (Apr. 8,

2021), https://perma.cc/KK6E-3KAM. See also Kaczynski & Kominers, supra note

154 (describing NFTs as “enabl[ing] a new type of royalty contract”).

194

See Rizzo, supra note 2; Brian L. Frye, Equitable Resale Royalties, 24 J. Intell.

Prop. L. 237, 239 (2017) [hereinafter “Resale Royalties”].

195

See “Resale Royalties”, supra note 194, at 240; Rizzo, supra note 2.

196

See “Resale Royalties”, supra note 194, at 240; Rizzo, supra note 2.

197

See “Resale Royalties”, supra note 194, at 240; Rizzo, supra note 2.

198

See “Resale Royalties”, supra note 194, at 249 (“Few artists ever tried to use

the Projansky Contract, and even fewer successfully convinced buyers to accept it.

Ironically, only artists whose artworks were already in considerable demand could

insist that buyers accept the Projansky Contract . . .”); Rizzo, supra note 2.

199

See Zhao, supra note 192, at 253.

200

See “Resale Royalties”, supra note 194, at 249.

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It may be difficult to form enforceable contracts with future buyers that the

artist has no relationship with. A resale right might also be found impermis-

sible in the United States under the first sale doctrine, which cuts off the

leaving subsequent sales unencumbered.

201

The digital, intangible nature of

the art linked with NFTs might affect some of this analysis, but so far the

implications are unknown. While these resale rights are currently part of the

market vogue around NFTs, their use may therefore diminish in the future

and is certainly not guaranteed.

NFTs’ incorporation of resale rights is an example of how NFTs invite

rethinking how we measure creative value. The prevalence and popularity of

resale rights in the NFT world indicates that artists want these rights. That

suggests that copyright law is out of step with how artists today think about

their creative value. As discussed, NFTs offer a way to decouple value from

scarcity and instead commodify value in other ways. Radically, NFTs might

also be taken a step farther: the fictional middleman, represented by receiv-

ing a bit of blockchain in exchange for paying artists, could be cut out

altogether so that one is directly supporting artists and creators. Given the

dubious independent value of the blockchain that represents an NFT,

202

can imagine a world in which we drop the pretense and directly sponsor the

artist the NFT compensates. Rather than paying for an NFT of a digital file

that exists all over the internet, we would simply pay the artist of the digital

file as payment for the aesthetic enjoyment of the digital art without receiv-

ing anything else in return. This idea is idealistic: people like to own things,

and many buy NFTs for the potential return on investment that could ac-

company ownership. But it is an instructive thought exercise because it

challenges our understanding of what is valuable about an artistic experi-

ence. Must we create scarcity and exercise exclusive property rights to enjoy

art,

203

or can we find a way for the support of artists and the virality of art to

exist simultaneously?

Not all creativity exists in spaces built on scarcity and ownership. In

fact, much of the creativity on the internet takes place in a viral world of

endless replication. The creativity on social media

—

a space used by bil-

lions of people

—

is replicated over and over as content is shared. Finding a

201

See id.

202

See Roose, supra note 7 (“There are . . . legitimate questions about what,

exactly, NFT buyers are getting for their money . . . .”).

203

See, e.g., Joan Westenberg, How Music NFTs Will Rewrite the Streaming Econ-

omy, Medium (Nov. 29, 2021), https://perma.cc/ZLP6-MWB7 (“Digital scarcity is

necessary to create a unique user experience and enable fans to form longer-lasting

and more profound connections with their favorite artists.”).

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way to monetize content in this environment can be challenging, as people

who have become memes have discovered. NFTs are a means of monetiza-

tion. But maybe they could also open the door to reimagining monetization.

If you are willing to pay for an essentially meaningless bit of blockchain,

might you pay directly for people involved in making art, with no owner-

ship myth attached? And could we also expand the limited way in which we

think about authorship, as we already do with memes? Is there room to

appreciate, in at least some circumstances, the interest of the people in the

photo, which copyright would not acknowledge? So, for instance, could we

have envisioned simply paying Disaster Girl because we love the meme?

Such an idea might seem absurd. But so too is paying up to millions of

dollars for NFTs, which have been characterized as merely “the idea of own-

ership,”

204

rather than real ownership. In the past, directly sponsoring cre-

ators by “patronizing” them was not absurd at all but one of the main ways

for people to support creativity. For instance, during the Renaissance, artists

like Michelangelo and Lenoardo daVinci were supported by wealthy families

who sponsored their careers and gave them the ability to produce their

art.

205

Some commentators have noted that the NFT craze could be the first

step in moving from ownership back to patronage.

206

“[W]hat we are seeing

with NFTs is the emergence of a new type of cultural economy built around

one of the oldest forms of cultural production: patronage.”

207

In other

words, maybe we could consider supporting artists simply to support artists.

The reward, as it was in the past, need not be a digital file; the reward could

be the art created for us and future generations to enjoy.

Paying for creativity in support of a creative community is a growing

part of the NFT world. As discussed, many of those active in the NFT space

refer to it in terms of community, with the money at stake characterized as a

curiosity at best.

208

Indeed, many NFTs do not even pretend to be about

anything other than access to a community. For instance, the website

204

See Gottsegen, supra note 53; see also Rizzo, supra note 2 (describing one NFT

marketplace’s terms of service as reading that NFTs “exist only by virtue of the

ownership record maintained in the Ethereum network. . . . [W]e do not guarantee

that [anyone] can effect [sic] the transfer or title or right in any [NFTs]”); Kaczyn-

ski & Kominers, supra note 154 (“NFTs . . . giv[e] parties something they can agree

represents ownership.”).

205

See, e.g., Victoria L. Schwartz, The Celebrity Stock Market, 52 U.C. Davis L.

Rev. 2033, 2046 (2019) (describing the patronage model).

206

See Rizzo, supra note 2.

207

Berg, supra note 138.

208

See Bruner, supra note 49; see also Kastrenakes, supra note 180 (observing that

the “vibrant communities [that] have formed around” NFTs is one of the best

things about them).

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“Dreamverse” sells NFT tickets that give access to a party.

209

The Bored

Ape Yacht Club bills itself as a “limited NFT collection where the token

itself doubles as your membership to a swamp club for the apes.”

210

This

means that, for many people, NFTs function “as part of their personal iden-

tity,” with the different NFT communities possessing “different personali-

ties.”

211

As one person in the NFT space explained, “It comes down to

fandom.”

212

The fandom comparison is apt. Paris Hilton, in a primer on NFTs,

praised them for “democratizing art” and “letting creators directly engage

with fans.”

213

She noted that “NFTs can give artists, even if they aren’t well

known, the opportunity to crowdfund their work.”

214

Other observers echo

this point: NFTs are “community-driven,”

215

Creators “who show up, re-

spond to messages (NFT-related or not) and connect with individuals on a

very human level make all the difference” to the success of an NFT.

216

This

close interaction between creators and audience is similar to how fan com-

munities have long operated. Fan creativity is intensely democratic, promot-

ing “maximum inclusiveness” and allowing posting by anyone who

wishes.

217

The main fanfiction archive on the internet, An Archive of Our

Own, employs no algorithms, depending entirely on users’ own choices of

tags and indices of popularity such as hits, comments, and “kudos” to iden-

tify what they want to read.

218

The community itself rates the fics as they

desire, and fan creators constantly engage with fans through social media, fic

209

See, e.g., Ticketing Options, Dreamverse, https://dreamverse.life/ticket-

ing.html (last accessed Mar. 12, 2022) (“Tickets to the Dreamverse Gallery are

available only as NFTs, and tickets to Dreamverse Party are available as both NFTs

and traditional tickets (non-NFTs).”).

210

BAYC, Bored Ape Yacht Club, https://perma.cc/6WQP-XKEU (last accessed

July 13, 2022); see also Kaczynski & Kominers, supra note 154 (noting that the

Bored Ape Yacht Club “has grown to include high-end merchandise, social events,

and even an actual yacht party”).

211

Kaczynski & Kominers, supra note 154.

212

Krueger, supra note 181.

213

See, e.g., Jeff Wilser, ‘I’m Obsessed’: Paris Hilton on NFTs, Empowering Female

Creators and the Future of Art, CoinDesk (Apr. 16, 2021), https://perma.cc/PW3V-

AFNZ.

214

Team Paris, supra note 193.

215

Elspeth Taylor, The Next Wave of NFTs is Starting With Community First,

Decrypt (Nov. 15, 2021), https://perma.cc/EY2M-E3FM.

216

Fan, supra note 174.

217

accessed Mar. 13, 2022).

218

See Terms of Service FAQ, Archive of Our Own, https://perma.cc/Q2SZ-

AER6 (last accessed Mar. 13, 2022).

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comments, Discords, and other means. Fanartists have crowdfunded their

work for years without the necessity to give away NFTs to attract sponsors.

For instance, an artist named Chekhov “creating comics, fanart and more!”

enjoys 467 monthly patrons on Patreon, a popular crowdfunding platform

for creators.

219

On the same platform, ov_fanarts “is creating Spooky Fan

Comics,” with over 300 monthly patrons.

220

On Patreon, fanartists usually

give away perks like early access and bonus content

221

– incidentally, exactly

what NFTs often use as enticements.

Fandom, like NFTs, is therefore about community at heart, not finan-

cial incentives. Stripped of their blockchain glamour, NFTs operate strik-

ingly like a fanartist’s Patreon. “[T]he community one builds around NFTs

quite literally creates those NFTs’ underlying value.”

222

This is a phenome-

non fan communities know well and whole-heartedly endorse.

The dark side of NFTs has revealed exactly how quickly tools wel-

comed as godsends for creative compensation become manipulated into in-

vestment tools that exploit creativity without compensation.

223

NFTs

provide people with the ability to perform art theft “at a completely new

scale,” on platforms that are “barely moderated.”

224

While the blockchain

has been heralded as unassailable, its security works only to protect sellers

(and sometimes uncertainly at that).

225

It offers little security to creators.

226

Given the dangers of NFTs, it is worth considering whether a more straight-

forward way of supporting artists exists: by directly patronizing them. If you

want to support an artist, you can support them in ways more varied and

interesting than merely buying something. Fan communities have been

finding a way to encourage creativity without scarcity for decades. If we are

open to it, NFTs could be another step toward embracing this idea.

219

Chekhov, Patreon, https://perma.cc/6KBZ-4FAN (last accessed Mar. 12,

2022).

220

Ov_fanarts, Patreon, https://perma.cc/MMY3-8E26 (last accessed Mar. 12,

2022).

221

See id.

222

Kaczynski & Kominers, supra note 154.

223

See Collier, supra note 41 (“While NFT proponents tout the technology as a

way to revolutionize arts patronage, the rapidly growing digital marketplaces that

enable those sales have so far done little to stop that piracy.”).

224

Id.

225

See Shanti Escalante-De Mattei, Thieves Steal Gallery Owner’s Multimillion-Dol-

lar NFT Collection: ‘All My Apes Gone’, ARTnews (Jan. 4, 2022), https://perma.cc/

4ULU-CWSM.

226

See Mitchell Clark, Photoshop Will Get a ‘Prepare as NFT’ Option Soon, The

Verge (Oct. 26, 2021), https://perma.cc/5N82-U7V3 (discussing the necessity to

invent new tools to try to protect creators better in the NFT marketplace).

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298 Harvard Journal of Sports & Entertainment Law / Vol. 13

NFTs have been hailed as a boon to artists, many of whom are enjoying

massive windfalls.

227

However, NFTs are not primarily about compensating

artists but about creating investment opportunities. Artists are a collateral

beneficiary

228

and sometimes victims, given the increasing issue of fraud in

the market.

229

Beyond NFTs’ implications for artists, the environmental im-

pact of NFTs is devastating.

230

Because of the amount of electricity used to

power the blockchain on which NFTs depend, the sale of a single NFT can

consume as much energy as an art studio might use in two years.

231

Bitcoin, a type of cryptocurrency that also relies on the energy-gobbling

blockchain, were a country, it would be “the 27th most energy-consuming

country in the world.”

232

And, as discussed, their justification for existence

is shaky: the “one true original” gimmick is a little like “the emperor’s new

clothes”: it falls apart upon close examination, when one realizes that the

only thing being purchased is a token that points to a digital copy of a piece

of art that could disappear at any time.

233

The volatility of the NFT market

can be seen as a reflection of the inarticulateness of what its value actually

is.

234

When it eventually collapses, artists will see their resale streams dry

up.

However, what meme NFTs reveal about how copyright, authorship,

and value are understood could be a boon to artists, even after the next fad

arrives. NFTs ask the question of what we consider ourselves to get in ex-

change for supporting creators. The ownership myth of NFTs suggest a

model of supporting creators we admire without expecting ownership of a

227

See, e.g., Wilser, supra note 213 (“It gives the creator better economics. We’re

definitely living in the golden age of the creator, so I can’t wait to see what the

future holds.”).

228

Indeed, one NFT platform is consciously striving to find “collectors who ap-

preciate the pieces” rather than “just bots who are trying to flip it on the secondary

market.” Eileen Kinsella, A New NFT Venture Has an Innovative Idea: Make Buyers

Prove They Know Something About an Artist Before They Bid, Artnet (Jan. 4, 2022),

https://perma.cc/DTC6-4U39.

229

See Collier, supra note 41.

230

See Bruner, supra note 49; Roose, supra note 7; Wood, supra note 54.

231

Gregory Barber, NFTs Are Hot. So Is Their Effect on the Earth’s Climate, Wired

(Mar. 6, 2021), https://perma.cc/fsl9-rt2c.

232

Niall McCarthy, Bitcoin Devours More Electricity Than Many Countries, Forbes

(May 5, 2021), https://perma.cc/QJ49-4ALA.

233

See Kastrenakes, supra note 180 (“As I left, he followed after me to make a

suggestion for my article, imploring me to ‘put in something about the emperor’s

new clothes.’”).

234

See “Cryptokitties”, supra note 111, at 250-51 (describing the success of

Cryptokitties, one of the first NFT projects, but also noting that the bottom fell out

of the market fairly quickly); Bruner, supra note 49.

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piece of their creativity in return. Perhaps more importantly, NFTs invite us

to consider whether the creativity that financially supporting an artist gen-

erates in and of itself is something valuable that we get in exchange. After

all, the underlying premise of the Copyright Clause of the Constitution is

that there is value in creativity, period.

NFTs have allowed many people to be compensated in ways they never

imagined in our existing copyright structure, and some have responded with

awe and gratitude. After the sale of her meme NFT in 2021, the subject of

the Overly Attached Girlfriend meme, Laina Morris, tweeted: “You guys are

INSANE. Thank you to everyone who bid . . . . Truly, you have no idea how

this is going to change my life. I mean it. I am so incredibly thankful and

also still just BLOWN AWAY. So weird. So cool. Wtf. Thank you, in-

ternet.”

235

This feels like what NFTs’ marketing wants them to be: a digital

exchange that brings us closer together as humans.

236

And it sounds like

exactly what other creators want: “I was happy when I saw my dance all

over . . . . But I wanted credit for it.”

237

235

Laina Morris (@laina622), Twitter (Apr. 3, 2021), https://perma.cc/FH4D-

WCUS.

236

See, e.g., BAYC, supra note 210 (“The club is open! Ape in with us.”).

237

Pruitt-Young, supra note 117.

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