- Artists and brands are vying over who has the right to sell irreplaceable tokens.
- Olive Garden, Hermes and Miramax have all taken legal action against NFT projects that claim that the company infringes its trademark or contractual rights.
- Both the Non-Fungible Olive Gardens and MetaBirkin NFT projects have been removed from the popular marketplace OpenSea following a legal letter from a legal counsel.
For Brian Moore and Mike Lacher, the Olive Garden restaurant with unlimited breadsticks and the kindness of everyone’s family is the epitome of inclusiveness.
So when two digital artists want to create a collection of NFT art that is accessible and non-intimidating to the average person, they look to their favorite casual dining restaurant for inspiration. I turned it. Created by Moore and Lacher, the 880 “Non-Fungible Olive Gardens” are essentially digital photographs of real Olive Garden restaurants, each encoded on the blockchain as a unique asset.
The artist sells each NFT or non-fungible token for $ 19.99 (the price of the main dish of the “Italian Tour” at the Olive Garden restaurant) and creates an additional NFT for breadsticks that is offered free of charge for active growth. Supported
A community where people eat at popular Italian-American eateries.
Ten days later, Olive Garden revealed that it did not consider the artist or its NFT to be part of the family.
On December 30, Olive Garden owner Darden Restaurants sent a removal notice to OpenSea, a popular NFT trading platform where collectors were selling non-alternative olive gardens. OpenSea has expelled organizers from the platform, blocked NFT sales, and confronted the thriving online community of olive garden enthusiasts with the very brand it gathered to celebrate.
Cease and desist letters and legal threats are becoming more and more common in the sudden epidemic of NFTs. In some cases, artists are forced to play police officers, hunting down scammers who create NFT versions of existing artwork and sell them as their own. More importantly, there is a conflict between corporate brands and artists who have conflicting views on the purpose and value of NFTs.
Once upon a time, the fair use of a company’s brand or trademark in a work of art (think Andy Warhol’s Campbell’s Soup Can series) and the commercial diversion of the brand to deceive customers (think counterfeit jeans). There was a pretty clear distinction. It was obscured by the rise of blockchain technology and the scrambling to bet claims on the Metaverse.
Luxury watch NFTs like Rolex are digital art in the eyes of a single viewer. But for watchmakers looking to do business in the new virtual realm, that digital watch is another version of their product, a type of virtual product that could one day be the basis for a thriving business in the Metaverse.
So far, the virtual world of buying accessories and properties for digital avatars is almost underway, but many companies, from French fashion house Hermès to Hollywood studio Miramax, are trying to crush NFT sales. It has something to do with their brand. The controversy represents an early example of new challenges and open questions that can become more frequent as the Internet evolves into an immersive blockchain-based territory.
“This is a moving trend of innovation and evolution,” said Mason Rothschild, an artist who creates images of fur-covered Hermes Birkin handbags, in December after receiving a discontinuation letter from a fashion company. I wrote an open letter to Hermes. .. “Your actions will help determine the future of Metaverse art.”
Metaverse “fake” wallet
Rothchild’s so-called MetaBirkins are a big hit, with the highest priced MetaBirkin NFT selling for $ 45,000.Throughout the collection
According to the NFT Marketplace Raribles, the project was $ 1.2 million after being delisted from OpenSea.
In a letter to Hermès, Rothschild argued that selling Metaberkins as an NFT was “similar to selling it as a physical art print.” This is a medium that has traditionally been protected by fair use law for the unauthorized use of trademark or copyrighted materials.
“Educating you about world progress and the culture of art should not be my job,” Rothschild wrote in an open letter.
NFTs are digital ledgers associated with specific digital content. They can be used to track ownership and are attracting attention in the digital art community, including some gallery owners and art collectors who use technology to track the origin or ownership of art, around the world. It is a useful tool in. Anyone can download a copy of a digital art piece from the internet.
Many brands are beginning to discover the potential for a presence in the Metaverse. Having a digital storefront or selling digital products as an NFT means standing in front of a new generation of customers. Some companies, such as Nike, which recently acquired an NFT company that manufactures digital sneakers, are taking steps to sell digital versions of the products they sell in the real world.
“At Metaverse, we are all building the world,” Cathy Hackle, CEO of Futures Intelligence Group, told insider Calimac Mahon in a recent interview. “And now is the time to start building. Whether you are a creator, a brand or a business, it’s time to start understanding. How can you start building this? Building Blocks what is it? “”
Intellectual property researcher and professor of law at UCLA, Kal Raustiala, said the law has traditionally endorsed creators like the Rothschilds. But he warned that if any of these NFT-specific cases were placed in front of the judge, their norms could change.
“I think the big problem that is approaching is beyond NFTs,” Raustiala said. “That’s how trademarks work in the Metaverse, and what does it mean to have a trademark in a digital product?”
There are few previous cases where guidance can be provided. In 2016, cinema chain Cinemark sued Roblox for some users creating a virtual city within Roblox, including the Cinemark Theaters. The proceeding was dismissed two months later without a public resolution.
It is unclear whether Hermes or Darden have taken legal action to prevent the NFT project from spreading beyond OpenSea. Darden declined to comment. Hermes did not respond to requests for comment.
Neither company has taken a serious move to launch their own project in the Metaverse.
Hermès prefers to focus on “concrete representations of handmade objects,” the company told the Financial Times.
“These NFTs infringe on Hermès’ intellectual property and trademark rights and are examples of fake Hermès products in the Metaverse,” Hermès told FT.
Next Big Battle: Pulp Fiction
One of the hottest controversies about NFTs comes into the limelight this week as film director Quentin Tarantino tries to market the NFT version of the script to the 1994 blockbuster movie Pulp Fiction.
The Tarantino NFT Collection includes seven unique NFTs, giving owners access to digital images of the original hand-drawn movie script and unpublished audio commentary from Tarantino. Miramax, the Hollywood studio that produced the movie, sued Tarantino in November and tried to prevent the sale.
In the proceedings, Miramax alleges that Tarantino’s NFT project violates a contract signed by both parties in 1993. The deal reserves Tarantino’s right to make money from screenplays, such as from printed matter and interactive media, but does not explicitly mention NFTs. It wasn’t invented until 20 years after the movie was released.
However, the deal gives Miramax “all other” rights, which the lawyer interprets as including the development, marketing and sales of NFTs.
“This is a kind of cultivar contract dispute, but there is a twist on this NFT,” said Raustiala of UCLA. The question is whether the contract between Tarantino and Miramax will allow us to sell one copy of the script.
Tarantino is unforgiving. In responding to the proceedings, the director’s lawyer said Miramax used the concept of NFT to confuse the public and mislead the court to deny the hard-earned rights of artists such as Tarantino. I did. “
Bidding for the first NFT in the collection will begin on January 17th.
“Don’t just ban” fans
The very high expectations that drive the NFT market are evident in OpenSea, the leading platform for buying and selling digital assets. It was recently valued at $ 13.3 billion by retail investors. OpenSea’s approach to trademark disputes has so far been to follow the path of least resistance.
In response to questions regarding the removal of MetaBirkins and Non-Fungible Olive Gardens, the company provided information regarding policies regarding plagiarized content.
“One of our operating principles is to support creators and their viewers by blocking plagiarism and plagiarism on the platform,” said Abram Smith, an OpenSea spokeswoman, in a statement. I am saying. “For that reason, selling NFTs using plagiarized content violates our policy. This is done on a regular basis in a variety of ways, including delisting and, in some cases, banning accounts.”
Still, the legal disclaimer was not enough to completely remove the non-alternative olive garden from the internet. Olive Garden Restaurant NFTs are still traded on other platforms and it is possible to create new breadstick NFTs from the project website. Italian music is still played 24 hours a day on the NFOG Discord channel.
Moore and Racher expect Darden to change his mind. Moore told insiders that they thought they were “by the side of the Olive Garden” and wanted to be “a member of the family because there is no better word.”
But if that doesn’t work, Moore said he’s confident that the NFOG community will find a way to move forward.
“You can’t melt the community, you can’t just ban them,” he said. “They are fans of Olive Garden.”