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.


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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 #185: Stuart Levi on The Intersection of Copyright and AI Tech Intersect™ with Prof Tonya M. Evans

It’s no secret that Artificial Intelligence (AI) tools have experienced a rapid growth in 2023. This makes it a pivotal time to test the contours of the laws that protect literary and artistic work when put up against AI. Today’s guest Stuart Levi joins me today to talk aboue the challenges AI poses to the current framework of copyright laws. This week, episode 185 of the Tech Intersect™ Podcast is about the intersection of copyright and AI. POWERED BY ADVANTAGE EVANS™ ACADEMY Navigate your way from cash to crypto with Digital Money Demystified. Dive into the definitive guide on crypto myths and truths by Professor Tonya M. Evans. This isn't just a book; it's a roadmap to the decentralized web’s future of work, wealth, and creativity. Head over to DigitalMoneyDemystified.com and embark on your crypto journey today! Stuart Levi is a recognized tech transactions and IP Law stalwart. He has pioneered work in Web3 and Digital Assets, Intellectual Property and Technnology, AI, Cybersecurity and Data Privacy, shaping some of the tech world’s biggest deals Topics Stuart and I go over in this episode include:Who can claim ownership when AI is involved in the creation of the work.Copyright law cases navigating the evolving landscape of AI.  Guidelines around the amount of human contribution required as it applies to ownership.Infringement claims in cases where copyrighted works are used in the training and aiding an AI model’s output. The fine line between fair use and infringement will begin to be worked out in upcoming years. Thank you for listening! If you enjoyed this episode, take a screenshot of the episode to post in your stories and tag me! And don’t forget to follow, rate, and review the podcast and tell me your key takeaways!CONNECT WITH STUART LEVI:LinkedInSkadden, Arps, Slate, Meagher, & Flom LLP and Affiliates CONNECT WITH DR. TONYA M. EVANS:Questions and requests: hello@techintersectpodcast.com Follow: Twitter @AtTechIntersect | Instagram @TechIntersect Web: Tech Intersect Podcast  Connect for exclusive content: https://advantageevans.activehosted.com/f/6 RESOURCES:Buy the Book + Leave 5 Star Review Digital Money DemystifiedConsulting, Courses and Community: DigitalMoneyDemystified.comDMD Weekly Investor Digest: Subscribe to My Substack Buy my book, Digital Money Demystified, and join the insider membership at https://digitalmoneydemystified.com/ today!Regulate & 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 #185: Stuart Levi on The Intersection of Copyright and AI
  2. Tech Intersect #184: Stephanie Humphrey, “Tech Life Steph” on Protecting Your Digital Persona
  3. Tech Intersect #183: Tiffany J. Smith on Navigating the Maze of Crypto Regulatory Compliance
  4. Tech Intersect #182: Laura Bell Main on Accessible and People-First Digital Security
  5. Tech Intersect #181: Digital Money Demystified Launch + Exclusive Training hosted by Minda Harts