Non-Fungible Tokens (NFTs) and the Interplay with Intellectual Property Rights and Licensing

Barry Werbin, counsel and member of Herrick’s Intellectual Property Group, is joined by Oliver Herzfeld, Senior Vice President and Chief Legal Officer of Beanstalk, a global brand licensing agency responsible for some of the world’s most recognized global brand extensions, in a conversation about non-fungible tokens (NFTs) and the interplay with intellectual property rights and licensing.

They discuss the distinction between the ownership of an NFT and the digital files to which it links and the ownership of underlying intellectual property assets that may reflect copyrighted content, brand names or logos. They note that generally the purchaser of an NFT does not acquire the underlying intellectual property rights, and discuss the exceptions to this rule. They also discuss smart contracts and how an original NFT creator will retain residual rights thereby receiving a percentage of the ongoing sales, differentiating it from other sales in the art market. Barry and Oliver address current NFT market trends and how brands have exploited NFTs in different ways – with some brand owners embracing the NFT market and some proceeding with caution. Finally, they discuss the interplay of the right to publicity and name, image and likeness rights as they relate to NFTs and the challenges that courts face policing NFT related disputes.