My Thoughts on Copyright Office & USPTO Joint Study to Examine IP Issues Related to NFTs

Copyright 2022 Tonya M. Evans (Twitter/IG: @IPProfEvans)

On Tuesday, November, 22, 2022, the U.S. Copyright Office and the U.S. Patent and Trademark Office (USPTO) announced a joint study to examine various IP issues arising from the use of non-fungible tokens (NFTs). The Wednesday, November 23, 2022 Notice of Inquiry for the Federal Register can be found here.

This joint study follows a June 9, 2022 letter from Senate Judiciary Subcommittee on Intellectual Property leadership, Senators Patrick Leahy (D-Chair) and Thom Tillis (R-Tillis), requesting that the Copyright Office and the USPTO conduct a joint study and address issues related to NFTs and intellectual property rights in consultation with the private sector, drawing from the technological, creative, and academic sectors.

The notice seeks written public comments to several questions listed and also announces that the Copyright Office and USPTO intend to hold virtual public roundtables in January 2023.

A Closer Look at Copyright + NFTs

In late 2017 and early 2018, the era of token proliferation to leverage token issuance to raise funds to build blockchain-enabled projects (with a healthy dose of scams and unregistered securities), I began studying the intersection of copyright and blockchains, smart contracts, open source software and token standards in the Ethereum ecosystem (ERC-20 for fungible tokens and ERC-721 and later standards for non-fungible tokens).

My first law review article, CryptoKitties, Cryptography, and Copyright, presented at the 2019 BYU Copyright and Trademark Symposium and published in the American Intellectual Property Law Association Quarterly Journal, 47 AIPLA 219, 2019), examined the copyright implications of unique, scarce digital creative assets transferred and stored on blockchains, which I refer to herein generally as unique crypto assets (UCAs).

Specifically, I explored the emergence of NFTs created based on the ERC-721, a novel token standard at the time that enabled, for the first time, verifiable digital scarcity—an elusive characteristic in the world of Web 2.0. I analyzed whether ERC-721 tokens (and other non-fungible coding standards) could empower UCA holders to maintain control over their cryptographic creations in gaming, collectibles, and the full range of copyright-intensive industries, to name a few.

More recently, I examined the creative justice opportunities that might be enjoyed by systemically marginalized creatives when NFT and blockchain technology is leveraged.

I assessed whether such web3 technologies could provide and protect the economic power and creative control the Copyright Act promised but historically failed (and fails) to secure when at odds with discriminatory practices, contractual loopholes, and statutory impediments like the copyright transfer termination right.

I hope that stakeholders from all aspect of creativity, technology, education and policy submit comments and are invited to provide testimony during any hearings in these matters. This technology has disrupted copyright-intensive industries as much as it has the financial industry. And we’ve only just begun to explore the power and promise (as well as the pitfalls), to be sure.

In working with creatives and collectors at BlackNFTArt, Umba Daima and Black@, I know firsthand how disintermediated access to platforms that connect them on a peer-to-peer basis globally and to transfer artistry for cryptocurrencies (capital assets in the US) has begun to move the needle on the income and wealth gaps (at least before the current crypto winter).

I also know that numerous issues exist for artists, collectors and exchanges: the copyright complexities in the referenced art file connected to an individual token (because the token, itself, it not the art); direct and secondary liability issues for platforms; copyminting issues; file storage; how to respond to takedown notices and decentralized file storage issues; copyright transfer termination issues; estate planning and post-mortem copyright and license management issues. The list goes on. And that is just copyright!

So there is much to discuss. What intellectual property issues do you see at the intersection of IP and NFTs?

I’ve talked about this topic to several lawyers on my podcast, Tech Intersect, so listen, subscribe, share and let’s continue to conversation:

Evans receives prestigious five-year Co-Hire appointment by the Penn State Institute for Computational and Data Sciences

Professor Tonya M. Evans has received a prestigious five-year Co-Hire appointment by the Penn State Institute for Computational and Data Sciences to add to her current tenured appointment at Penn State Dickinson Law School in Carlisle, Pennsylvania. The appointment begins on July 1, 2022.

This joint appointment with ICDS is a major milestone in Penn State Dickinson Law’s commitment to interdisciplinary research in the Penn State system. Professor Evans’ research focuses on the legal, policy, and economic justice implications of new technologies and innovation; specifically, distributed ledger technologies, cryptocurrencies and other cryptographically secured digital assets including non-fungible tokens (NFTs), decentralized finance (DeFi), and decentralized autonomous organizations (DAOs). Legal considerations include intellectual property, regulatory frameworks, and cross-border dispute resolution mechanisms. ICDS is a vibrant community of interdisciplinary researchers working on issues of significant importance to the research community with worldwide impact.

Professor Evans has authored two forthcoming law review articles related to her interdisciplinary work: The Genesis of Creative Justice: Disintermediating Creativity, 26 Lewis & Clark Law Review 3 (2022) and De-Gentrified Black Genius: Blockchain, Copyright & the Disintermediation of Creativity, 49 Pepperdine L. Rev. 101 (2022).

She will be discussing her findings on creative and economic justice in the metaverse on an upcoming episode of PBS NewsHour and also in a Twitter Spaces event on March 4th hosted by the Wall Street Journal.


Speaking inquiriesGravity Speakers Bureau

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Tech Intersect Podcast with Prof. Evans: Listen and subscribe here

Will legal ed and the practice of law pivot to meet the #neweconomy & #futureofwork?

“Lawyers aren’t going away. But the way we work is changing.”

Today’s client and, more importantly tomorrow’s client, demands that lawyers keep pace with the #futureofwork in the #neweconomy. Here’s where I think we are and where we HAVE to go.

How do you foresee this directly impacting the legal industry?

Asked by interviewer Adam Keirstead

Dean Evans

Well, there’s a really interesting move in the legal industry to prepare lawyers to have conversations with technologists in the IT department and those who are coding to leverage the existing master contracts that we have in order to figure out ways that we can automate certain functions.

Essentially, there are master agreements underneath that lawyers do, and there’s coding the coders and IT specialists do. They need to be able to talk to each other. This is an area that’s ripe for innovation on the law side.

Lawyers won’t go away, but the way that lawyers are interacting with business people, and in terms of our advice and how we work with them is going to certainly change!

Read the full transcript and listen to the original podcast with Dean Tonya M. Evans here.


tune into the Tech Intersect Podcast with Tonya M. Evans

Tech Intersect #134: SPOTLIGHT My Conversation with former FTX Policy Lead & former CTFC Commissioner Mark Wetjen weeks before the FTX Debacle Tech Intersect™ with Prof Tonya M. Evans

Just weeks before FTX, the crypto exchange Sam Bankman-Fried founded, declared bankruptcy in an epic failure and violation of trust that wiped out billions of investor dollars, I interviewed the head of policy and regulatory strategy at FTX and former CFTC Commissioner, Mark Wetjen in episode 127, "The Role of Crypto Exchanges in Policy, Regulation & Education".  Listen to Mark's take on FTX and crypto policy and regulation before the bottom dropped out from under the investors who trusted this centralized exchange to be a good ecosystem steward of client funds. I invited Mark on at that time, to discuss the recent bipartisan legislative initiatives that seek to clarify the crypto asset regulatory environment and to talk about a 2022 crypto education initiative launched by FTX, #GetToKnowCrypto, and about how platforms like FTX could play an important role in ensuring the future of work, wealth and creativity are accessible and inclusive for all. What a shocking fall from grace. And what a difference a few months make. What do you think is next for SBF and others who participated in the inner workings of FTX? And what does this mean for the future of regulation in the crypto ecosystem, which consists of over 22,000 different coins and tokens and myriad crypto assets and projects?  ****Join the Rachel Rogers & Hello Seven MAKE MONEY MOVES Challenge [affiliate] ****POWERED BY ADVANTAGE EVANS™ ACADEMY  Ready for YOUR advantage?  With Bitcoin and Ethereum leading the way, the cryptocurrency market is booming. And growing. With thousands of different types of crypto (and counting), crypto is a fast-paced, fast moving emerging asset class. Find out what banks, governments, and companies like Paypal don’t want you to know about owning crypto and holding it in your own wallet or self-guided crypto IRA. Bottom line? It’s a wave. And you deserve this opportunity to ride it all the way to financial freedom that leads to economic empowerment and generational wealth. LEARN safely, legally and confidently while you EARN so you CAN:transform your relationship with moneygenerate wealth in the new digital cash economycreate digital ownership streams that lead to generational wealthvet, buy, store, trade, earn, and sell cryptocurrenciesengage in “defi” to lend and leverage your cryptocreate, buy and trade creative and collectible NFTsJoin now at advantageevans.com/specialShow Notes:Sam Bankman-Fried NY Times interview: ‘Look, I Screwed Up’: Sam Bankman-Fried Is Challenged on the Collapse of FTXLaura Shin's Unchained Podcast: The Chopping Block on FTX/Alameda: Is Sam Bankman-Fried ‘Crypto Kanye’? – Ep. 424Show Contact:Questions and requests: hello@techintersectpodcast.com Follow: Twitter @AtTechIntersect | Instagram @TechIntersect Web: Tech ISupport the showRegulate & The Rabbit Hole by Notty Prod licensed via Creative Commons Attribution-NoDerivatives 4.0 International License. Produced by Tonya M. Evans for Advantage Evans, LLC
  1. Tech Intersect #134: SPOTLIGHT My Conversation with former FTX Policy Lead & former CTFC Commissioner Mark Wetjen weeks before the FTX Debacle
  2. Tech Intersect #134: SPOTLIGHT ep #127 Mark Wetjen/FTX: The Role of Crypto Exchanges in Policy, Regulation & Education
  3. Tech Intersect #133: SPOTLIGHT 114-Maxwell Frost-Congress, Crypto and the Future of Economic Justice
  4. Tech Intersect #132: Gabrielle Hibbert-Creating Effective Crypto Policies for an Inclusive Decentralized Web
  5. Tech Intersect #131: Jubee Vilceus – Empowering the next wave of Reskilled IT Specialists