NFTs and Copyright Law: A Valuart Podcast With Nate Harrison

I got the copyright for love – Leo Buscaglia

Welcome to the Valuart blog, a place of artistic expression, wonder, intrigue, and, for today, NFTs, fair use, appropriation art and copyright. For those of you who are new here, at Valuart we create digital NFT originals of iconic, modern and classic works of art. Our mission? To showcase masterpieces to a new generation of NFT collectors, investors and art lovers, all the while keeping true to the original piece. Valuart is the fusion of art and technology; the past, present, future and the esoteric trappings of NFTs, blockchain and the Metaverse combined. It is a hybrid of technological majesty and the never ending dichotomy of art.

It’s also a community. And so we can engage with our community on a more personal level, each week we host a podcast. During each episode, Eddie and Izzy (Valuart VIPs) engage deeply with a guest from the world of NFTs, art, blockchain, philosophy, decentralized gaming or law, in a bid to learn more about this intriguing yet complex new world we are all traversing together.

Whether it’s a high-flying NFT artist blowing up the Twitterverse, a blockchain developer using the complex magic of smart contracts to fuse the art world to technology, an avatar from the shared virtual world of Decentraland or aficionados of play-to-earn NFT platforms such as Axie Infinity or Realm, the Valuart podcast will be a bastion of learning and fun.
This week we were joined by Nate Harrison. Nate is a self-taught music producer synonymous with his 2004 exploration of the world’s most famous drum beat, the Amen break.

It’s a ubiquitous piece of the pop culture soundscape. It’s been used as the rhythmic backdrop in everything from late 80’s gangster rap to corporate America’s recycling hip-hop forms to sell things like jeeps to blue jeans to suburban America. In fact, just last week I saw a TV commercial for a pharmaceutical company where this drumbeat was used to promote some sort of purple pill. – Nate Harrison

But Nate Harrison is much more than that. A self-taught breakbeat music producer and digital artist, (his work has been exhibited at the American Museum of Natural History, the Whitney Museum of American Art, the Centre Pompidou, the Los Angeles County Museum of Art, and the Kunstverein in Hamburg), he became fascinated with looking at music and art through the lens of intellectual property law. So interested in fact, he did a PHD, wrote a book and now sits at the intersection of art, technology and (US) copyright law. If only we were all as motivated when a subject ignites our curiosity!

It was a riveting conversation about the philosophy of appropriation art, the copyright systems which underpin it, and the future of NFTs, technology and Web 3.0. Nate was exuberant and enlightening, thoughtful and engaging. Eddie asked questions which caused reflection, exchange and dialogue to flow. You should listen. What follows are my own musings on the episode.

Copyright 101: Art leads, The Law follows

Culture always leads the way. Artistic production always leads the way. The law responds; the law reacts; it never leads. – Nate Harrison

Or at least it used to. The explosion of digital art over the last 20 years has given governments and corporations the opportunity for pre-emptive strikes. Technology has opened the doors to a new era of digital art, but it has also landed an Achilles heel firmly in the cross hairs of the power brokers and platforms where we consume the music and videos which grab our attention: Algorithms don’t give you the option to infringe.
The same isn’t true for the NFT platforms growing like monoliths from the dessert floor.

What is Appropriation art?

Appropriation in art is the use of pre-existing objects or images with little or no transformation applied to them.

To paraphrase what an NFT artist could say, “I borrowed, sampled, adopted, recycled a piece of pre-existing art and used it to create, distil, or imagine something new.”
Many of the NFT artists of the moment are commentators on consumerism and society’s unwavering obsession with celebrity and political polarisation. Scroll down Rarible, Open Sea, Nifty Gateway or SuperRare and you will be reminded of the cultural, political and artistic legacy of the past thirty years. From brand logos and corporate imagery to cinematography and unlimited representations of Donald Trump and Lebron James. Indeed, these “images” have been borrowed, sampled, adopted and recycled more times than Nyan the damn cat has traversed space and wasted your time. (Indecently, you will find no such art on Valuart, only masterpieces from the very best artists from history.)

What is fair use?

Art is amorphous, visceral, intuitive, often transcending language to communicate ideas in which we lack the vocabulary to do so (but yes, sometimes it is just a cat sitting on a watermelon). Art is spontaneous and innate and distilled from experience and creative influence. As such, artists often ‘copy’ part of a pre-existing cultural expression to realise their own expression. So how does copyright law accommodate the artists who go down their creative rabbit holes and imagine something new from something old? The copyright loophole which is fair use is the answer and it allows artists some liberty and freedom to ‘copy’. To a degree.
But where is the line? Who dictates what constitutes fair use? Should the law be flexible enough to allow artists to copy with impunity? Or, as Nate believes, must you be able to justify why you are doing the art you are doing?
The United States Copyright act of 1976 provides four factors which, when considered in entirety, can offer a defence against alleged copyright infringement. Those four factors are:
  • The purpose and character of the use (commercial or educational, trans-formative or reproductive, political);
  • The nature of the copyrighted work (fictional or factual, the degree of creativity)
  • The amount and substantiality of the portion of the original work used; and
  • The effect of the use upon the market (or potential market) for the original work.

Web 3.0, copyright and the aging US Congress

Obviously there is a copyright common ground which needs to be reached as NFTs continue their unstoppable proliferation onto the cultural landscape. A working consensus on copyright in the early days of Web 3.0 is going to be a challenge for an ageing congress ludicrously out of touch with the technology and reality it seeks to control.
The average age of Senators of the House at the beginning of the 116th Congress was 62.9 years – much higher than the national median age of 38.
Congress demonstrated just how disconnected it is from the internet during the cringe-worthy “grilling” of Mark Zuckerberg in 2018. When the rulers of the free world are posing questions such as the three which follow, there is not much hope that these same people will be able to infiltrate the labyrinth of smart contracts, mining, minting, and distribution channels necessary to implement, track and follow up on NFT copyright law.

  • “Is Twitter the same as what you do?”
  • “What was Facemash, and is it still up and running?”
  • “If I’m emailing within WhatsApp … does that inform your advertisers?”

The argument that you shouldn’t be a tech expert to sit in congress would be fine if these people weren’t writing the rule book.

We are entering a new golden age of art lead by an ever younger demographic. Fortunately, as Nate points out, the legal system is also experiencing its own youthful renaissance.

Young people are coming up who will have innate understanding of copying (and social media/internet) and it will change because the current judiciary are not artists or have social media experience.

The sooner the better.

Smart Contracts, Web 3.0 and NFT copyright

From a technological and web 3.0 point of view, there are some (huge) prerequisites to consider when thinking about how future incarnations of the internet will solve, adjust, accommodate and change not just copyright, but all of the legal, cultural, linguistic, finance and commerce platforms and institutions (DAOs) which will run on it: there is simply so far to go that we just don’t know.
Much of what we speak of is speculation, much of what we know is guess work and swaths of our knowledge are lacking in fundamental data because there simply isn’t any. It really is a brave new world.
That said, regarding the technology which surrounds NFTs and copyright. First things first:
Does the sale of an NFT grant copyright in the underlying asset?

In short, “No.”

Acquiring ownership of an NFT representing a work in which copyright subsists does not, without more, grant the new owner of the NFT copyright in the underlying work. However, this position can be varied by (smart) contracts. The smart contract which governs an NFT could specify how proprietary rights, including copyright, are transferred upon sale of the NFT. For example, Beeple’s First 5000 Days did not include copyright and Beeple has already sold 1 of the 5000 days individually (6 million for charity).

As stated by copyright law expert, Dr Andres Guadamuz,

An NFT is simply a cryptographically signed receipt that you own a unique version of a work. It is a misconception that purchasing an NFT gives the buyer a proprietary right to every copy or version of the underlying work.

There are common analogies between the ground swell of NFTs and the golden age of music sampling and the lack of a coherent copyright system which tied it all together. There is a murky, interstellar soup of invested parties seeking the high ground; a battle of freedom verses responsibility, artistic intention verses a right to protection. We don’t want large corporations punching down, but is the antithesis of that to open the floodgates and let anyone take anything from anyone? Does it have to be so binary, or is there a compromise somewhere in the non-fungible middle?
I don’t know the answer. Until I listened to this Valuart podcast I hadn’t posed the question. And one feels many of the artists seeking fame and Ethereum fortune haven’t either. And all solutions start with questions, so let’s start asking more questions.

NFT Epilogue

Speaking of questions. In case you have been sleeping under an NFT bush the past two months, you will know super artist and British Icon Damien Hirst is releasing his NFT project Currency, a collection of ten thousand NFTs that correspond to ten thousand unique physical artworks. They cost €2000. Each collector has one year to either keep the NFT or trade it for the physical artwork. There is a catch of course: whichever is not selected will be destroyed.
Damien Hirst is asking perhaps the most important question as pertains to the (immediate?) future of NFTs: Where do we place value in 2021? Online or offline, Web 3.0 and NFTs or the physical domain of our concrete reality? I don’t know about you, but I can’t wait to get an answer to that particular question.

NFT V Appropriation Art

NFTs are designed to give you something which can’t be copied, which when you think about appropriation art and much of what Valuart covered in the podcast, is kind of ironic, don’t you think? (Did I just quote Alanis Morissette?)
On that note, see you next week.

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