NFT’s, Ballet, and Law
Introduction
NFT, NFT, NFT… Those three letters I see EVERYWHERE!!! At first, I didn’t pay much attention. I thought NFT’s where out of my scope being an attorney that concentrates her practice to help artists especially ballet artists. I would say to myself “that is for people in the tech business” trying to ignore the fact that I didn’t know anything about it and didn’t have the time to learn about it either. Nonetheless, on November 29th, of this past year while I was drinking my third coffee at 9am and reading through my social media platforms I read a news that changed my perspective. “Ok, you have to learn NFT’s. This is everywhere.” I said to myself. So, what are NFT’s? What news I read that made me change my mind about them? Keep reading. I will tell you all about it and believe me, no matter what law you practice you need to know.
What are NFT’s?
Non-fungible tokens, or NFTs, are pieces of digital content linked to the blockchain. They are bought and sold online, frequently with cryptocurrency, and they are generally encoded with the same underlying software as many cryptos. They are unique and not mutually interchangeable, which means no two NFTs are the same. Explained in another way, NFTs transform digital works of art and other collectibles into one-of-a-kind, verifiable assets that are easy to trade on the blockchain. Physical money and cryptocurrencies are “fungible,” meaning they can be traded or exchanged for one another. They’re also equal in value. NFTs are different. Each has a digital signature that makes it impossible for NFTs to be exchanged for or equal to one another.
Now a days, NFT’s can be made of almost anything. It could be physical or intangible property. Examples of these are art, GIFs, videos, collectibles, performances, music, tweets, even real estate.
The future of art with NFT’s
One benefit that NFTs offers to artists and content creators is a unique opportunity to monetize their work without a middleman. For example, artists no longer need to rely on galleries or auction houses to sell their art. Instead, the artist can sell it directly to the consumer as an NFT, which also lets them keep more of the profits. In addition, artists can program in royalties, so they’ll receive a percentage of sales whenever their art is sold to a new owner. This is what painter Lana Denina decided to do. She looked into NFT’s as an alternative for traditional galleries because as she explained: “Traditional galleries are kind of like the old world, since there isn’t much diversity,” Denina said. “I never felt fully attracted to it, especially as a woman of color.” In less than a year the 24-year-old painter has earned over $300,000 from selling her art as NFT’s. She was impressed by: “…the technology’s ability to act as a vehicle for proof of ownership for artists.” She also likes the ability to earn royalties on secondary sales.
Playboy Enterprises International, Inc. NFT’s Legal Case (Playboy Enterprises International, Inc. v. www.playboyrabbitars.app, No. 21 Civ. 08932)
NFT’s have already started to appear in the court arena in relation to intellectual property law. On November of this past year Playboy Enterprises International, Inc., Playboy for herein, filed a complaint to stop the Defendants from counterfeiting the Playboy Marks in connection with the unauthorized sale of fake Playboy Rabbitars NFTs on counterfeit websites. Playboy filed its complaint under: (1) the Lanham Act (15 U.S.C. §§ 1114, 1125(a), 1116) (Counts I and II); and (2) trademark and unfair competition under New York common law (Count III). The Court held a hearing on November 12, 2021, regarding Playboy's request for a preliminary injunction and then granted Playboy's request for a preliminary injunction and confirmed the seizure order within the Ex Parte Order.
What was the news that changed my mind?
Maybe you are like me and are thinking that even though NFT’s appear to be everywhere they are not really going to affect your specific practice. Well, let me tell you about what changed my mind. Like I explained a little before I am a ballet artist and attorney. I concentrate my practice in helping ballet artists with their legal issues specifically in the areas of Trademark, Copyright, and Immigration. On November 29th, 2021 I read on social media that Bonhams new auction called, Encore! Modern Art on Stage, was going to offer the world's first NFT’s of ballet. World-famous ballerina Natalia Osipova, the principal dancer at The Royal Ballet in London, had performed three pieces, two from the classic ballet Giselle and one from the contemporary duet Left behind, which she dances alongside Jason Kittelberger and the pieces were going to be placed for bidding on bonhams.com on 29 November and will close on 10 December 2021. The details of the performances placed for auction were:
• Giselle, The entrance of Act II – Video from November 2021 exclusive for NFT (Estimate: £8,000 - £12,000)
• Giselle, Solo of Act II – Video from November 2021 exclusive for NFT (Estimate: £8,000 - £12,000)
• Left behind – Video of live show in Mexico 2019; choreographed by Jason Kittelberger (Estimate: £30,000 - £50,000)
On the press release that Bonhams published, Natalia Osipova commented on the upcoming sale the following: “I am thrilled to bring classical ballet and contemporary dance together in this NFT collection. These performances are extremely significant for me, and I am delighted that global audiences can appreciate them in a way that has never been possible before. NFT are a ground-breaking way of connecting both established and young visual artists with their audiences, including tech-savvy art collectors. It is an honour to perform the world’s first ballet NFTs, and I hope that this will pave the way for the next generation of dancers to connect with their supporters on this digital age.” And that is when it hit me. NFT’s are affecting everything and to keep up with times and to be the best IP attorney I can be I need to learn about this subject even if it will eventually go away.
I followed the news and on December 10th, 2021, the performances were sold for the following amounts:
1. NATALIA OSIPOVA, Giselle, The entrance of Act II NFT, Sold for £10,837.50
2. NATALIA OSIPOVA, Giselle, Solo of Act II NFT, Sold for £10,837.50
3. NATALIA OSIPOVA & JASON KITTELBERGER, Left behind NFT, Sold for £37,750
How can NFT’s improve my IP practice?
Are NFT’s the latest fad or are they here to stay? No one can answer that for sure. Nonetheless, NFT’s is a market that is growing and fast. This means that us, like responsible IP attorneys, should start to learn about it so that we can advise our clients in the best possible way. It is our mission to keep up to date with the trends of the industry. With the information that is coming out lately there appears to be a market especially of these young generation interested in new ways, digital ways, to access art, differently from what where the venues of the past. With these new venues, new trademark, and other intellectual property issues are arising like the one experienced by the Playboy’s case. Now that a new year is starting let’s prepare ourselves for the future. Let’s become the best IP attorney we can and be ready for the new generations to come.