Do Bored Apes have a copyright problem?

Why buy a bored ape when you can have a bored llama for free?

I’ve been catching up with the ongoing case of Yuga Labs v Ryder Ripps. This case involves conceptual artist Ryder Ripps, and Yuga Labs, the makers of the Bored Ape Yacht Club (BAYC) NFT collection, which is still the most successful NFT project in the world. Ryder Ripps has been a very vocal critic of BAYC, he created a website called Gordon Goner where he details the evidence that BAYC is filled with racist dog-whistles. A video by YouTuber Rhilion puts together all of the claims in a documentary.

As part of this campaign, RR also created his own competing Bored Ape collection, the RR/BAYC. This takes the entirety of the Bored Ape collection of 10k “unique” apes and re-minted it. BAYC proceeded to respond to this provocation by suing Ryder Ripps.

Initially I thought that they would have sued for copyright infringement, but then I read the complaint, and I was a little shocked to learn that the word “copyright” is not mentioned in that document once. Yuga Labs sues for “false designation of origin, false advertising, cybersquatting, trademark infringement, unfair competition, unjust enrichment, conversion, and tortious interference.” Interesting, for something that is supposed to be the future of digital rights, copyright shines by its absence.

This got me thinking. Why would they completely ignore copyright in their complaint? It seems like an excellent example of copyright infringement. But of course, as I have argued before, many NFT projects may not have copyright to begin with. Ryder Ripps agrees, he has been baiting NFT creators, arguing that “you cannot copy an NFT”, and whenever there has been a DMCA claim against him, it has been retracted. This happend also with RR/BAYC, he explains:

“This collection was delisted from the Foundation marketplace on May 17th, 2022 when Yuga Labs sent a DMCA takedown request. Two hours later Yuga Labs formally capitulated, withdrawing their DMCA request. The current terms of ownership set forth by Yuga Labs to BAYC token holders are unclear and do not meet current copyright standards. Clearly defining what we are buying when we purchase an NFT is one of the primary goals of this work.”

So, it is evident that Yuga Labs doesn’t want to test the copyright over their apes. I started to wonder if this is more widespread than this complaint against RR. Did Yuga Labs register their images with the US Copyright Office? I searched the public records. The results shocked me even more. There are only 12 records for Yuga Labs, and only 11 for Bored Apes. One appears to be a comic book by a third party, and not registered by Yuga Labs. The rest appear to have been filed by buyers, and also not Yuga Labs. In one instance, the registrant was a company in Las Vegas that is offering to sub-licence two Bored Apes they own, which they have named Branson and Rockstar Robbie. Three apes were registered by Bored and Hungry LLC, which runs a Bored Ape themed burger joint in Long Beach CA. The rest were registered by an individual who claims to have received the title of the 7 bored apes with a written agreement (which is a legal requirement for copyright transfer).

This is amazing. The most successful NFT project in the world, which has been purchased by dozens of celebrities, and most recently was featured by Eminem and Snoop Dog in the MTV Music awards, lacks copyright registration.

Let that one sink in for a moment.

This could also explain why their terms and conditions are so badly drafted, because they were not really intending to enforce any copyright because there is no copyright. Could it be possible that all 10k apes are in the public domain? It has been clear from the start that all of these people are buying stuff that they think they own, but I sort of assumed that the work could have copyright. However, imagine for a second that they knew there was no copyright, this would explain why they never even bothered to register them, and if the first case defending the project is not even using copyright, then it could prove that they know these works are in shaky legal ground.

We are witnessing the largest media empire built on sand, misunderstanding, wishful thinking, and greed. Millions spent on links to jpegs of apes that cannot be enforced in court on copyright grounds.

Ironic doesn’t even begin to describe this.

We’ll see what happens. Ryder Ripps has answered the claims, and I suspect this will make it all the way to trial. But it won’t be a copyright trial.

But what about all of those people who proudly own a Bored Ape NFT in the mistaken idea that they actually have rights over their ape?

Let me get my popcorn.