The interface between NFTs and the public domain

Is this image in the public domain?

2021 has been the year of the NFT here at Llama Towers. It seems like there’s no shortage of stories coming out of the NFT scene, so to avoid having to rename the blog to “NFT Weekly News” I haven’t been reacting to the latest occurrence with the same enthusiasm as earlier in the year. But there are a few developments that fall squarely in Yours Truly’s expertise and research interests, and require further analysis. The latest debate to catch my  eye has been the growing discussion of what exactly is an NFT for from a copyright perspective, and whether they are actually being used to free up works.

A very good example of the interface between NFTs and public domain was done by photographer Cath Simard. In 2017 she took the photo shown above of a road in Hawaii and she posted it on her Instagram account. The picture was an instant hit, and started getting shared all over the internet, often without any attribution. After years of having her picture infringed online, Simard decided to try something different, she created a website called #FreeHawaiiPhoto where she offered the picture as an NFT with a reserve price of Ξ100 ETH. If someone bought the picture at a minimum of the reserved price, Simard promised to make the picture available to download for free for everyone in the world. The price was met and the NFT purchased by a collector, making this the first public domain image powered by an NFT… until you look at the small print.

Just by looking at the website and the story one would get the impression that the work is on the public domain, until you read the “small print” on the website. Yes, there’s a licence, which means that the work is not in the public domain at all. The licence makes it clear that the full copyright is retained by the author, and that users get a pretty permissive licence to do with the work as they please (as I have done in this blog post). There’s only a small ask:

• #FreeHawaii can not be sold and/or minted as an NFT or in any other form without significant alteration

• #FreeHawaii can not be licensed or sub-licensed to a 3rd Party without significant alteration

Wait, if the image is practically in the public domain, why can’t I just make an NFT of it? The implication of including a licence here is that it’s not really in the public domain, but just licensed to the full extent of the law, unless it is about minting an NFT. I would argue that even this prohibition is not worth the bits it’s written on, and I’m happy to be proven wrong by minting my own version of the picture (here).

But I digress… the idea is interesting. Using NFTs as some sort of encouragement to release works to the public, the cryptocurrency equivalent of patronage. I pay you, you make the world available to everyone! What’s there to hate? Besides the dodgy (and probably unenforceable) licence? Nothing much.

But this idea has taken hold in NFTland. As many critics of NFTs have pointed out (including Yours Truly), an NFT doesn’t transfer property in the original work, it’s just a token that represents a work and has been signed by the creator. This token can be traded, but most of the time it is not the intention of the rightsholder to trade any ownership with it, and even if they did intend it, the token may not be enough to express it in a legally binding manner.

So the latest invention in NFTland has been to encourage users to completely bypass copyright, and whenever possible to try to release their images into the public domain using some sort of dedication, or with a licence such as CC0. This licence is part of the Creative Commons spectrum of licences. Not every legal system allows an owner to relinquish their copyright (more about that topic here), CC0 provides users with a useful legal hack, if it’s possible to relinquish copyright, then the licence acts as a dedication to the public domain. If it’s not possible, then the author licences all possible rights, which has the same effect as being in the public domain.

So why are NFT owners considering CC0? The main proponent of this idea has been Bryan L. Frye, who points out in an interesting article that NFTs are not about ownership, but about clout, so that the ownership of the work is irrelevant. He says:

“When you buy an NFT, you don’t buy the right to control the use of a work of authorship. You buy the right to be the owner, and the clout associated with ownership. And when you sell the work, you are selling the clout. Nothing else matters. People can use the work however they like, without affecting your ownership. Or rather, by using the work without your permission, they only prove your ownership. And by talking about the work, they only prove its value. After all, the only thing worse than being talked about is not being talked about, and that goes double when it comes to clout.”

So, a few NFT proponents have been adopting this version, and trying to release their work using CC0. Chris Dixon tweeted:

NFTs are completely independent from copyright.

You can pick any copyright you want for an NFT.

A popular (and I think best choice) is CC0=public domain.

Letting creators monetize while removing copyright does the *opposite* of imposing scarcity—it increases sharing/abundance.

— Chris Dixon (@cdixon) December 11, 2021

I do find this idea fascinating, completely removing the copyright element, and making it all about the core of the NFT, which is bragging rights.

But of course not everyone has adopted this model, in part because I am still convinced that large numbers of NFT buyers have no idea what they are buying, or the rights involved in the transaction. As Geoffrey Huntley explained in a great interview with Cofeezilla, most people don’t realise that an NFT is a database entry with a link to an image, and not the image itself.

There is a conflict brewing right now between the CC0 crowd, and those who still see some sort of ownership, as far as I can tell not many large projects have adopted the CC0 avenue, but there are those who argue that the price of more open projects will go up in comparison to closed projects, but I really don’t see much evidence for that claim.

We’ll have to wait and see, but to be honest, while it is true that NFTs are mostly about the clout and prestige, real life still has a way of getting in the way. I bet that the second someone starts using a Bored Ape without permission in a TV series, or starts printing and selling Lazy Lion merchandise, NFTs may re-discover their love of IP quite quickly.