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NFT's and United States Copyright

NFTs, or “Non-Fungible Tokens” are digital files with a unique identity that is verified on a blockchain. These files can represent any manner of real world property such as art, music, or architecture. NFTs are not interchangeable as they do not hold any inherent value except what an person is willing to pay for the work the NFT represents. As such, NFTs are each unique. They can represent a one-off original, like art or a piece of music or also be one of a fixed number of copies in a limited series. NFTs can be viewed as a verified ownership or certificate of authenticity encrypted by the blockchain.

The USPTO says that a copyright is a form of protection provided by U.S. law to the authors of "original works of authorship" fixed in any tangible medium of expression. The subject matter of a copyright can be extremely broad and includes literary, dramatic, musical, artistic, audiovisual, and architectural works. Copyright protection is available to both published and unpublished works.

This would mean that any work created and sold as an NFT would have copyright protection under U.S. law as a copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a "copy or a phonorecord for the first time."

However, you should consider registering your work with the Copyright Office for the following reasons:

•Registration establishes a public record of the copyright claim.

•Registration is necessary before an infringement suit may be filed in court (for works of U.S. origin).

•If made before or within 5 years of publication, registration establishes prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

•If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

•Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.

NFT's can be a way for artists to ensure verifiable authenticity of their work and make it harder for people to obtain fake copies of their intellectual property. Copyright registration through the USPTO can enable artists to fully enforce their ownership rights to that intellectual property.


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