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Abstract

Non-Fungible Tokens, or NFTs, are digital assets based on blockchain technology and are steadily growing in popularity in the art market. The technology has created a novel way of establishing ownership through tamper-resistant cryptographic records. A majority of NFTs are created via the Ethereum protocol and are most notably associated with other assets, such as digital art. Even prominent auction houses, like Christie’s, have joined the action. NFTs offer a whole host of new and interesting legal concerns, including questions surrounding smart contracts. The concerns surrounding traditional art, however, are long-standing and include (but are not limited to) provenance, authenticity, title, copyright infringement, and various art crimes established by statute. The combination of existing law and new technology creates uncertainty and requires exploration.

This note explores how NFTs may influence a few of the long-standing issues in art law, specifically if an NFT were to be associated with tangible artwork. Further, this note argues that NFTs show promise at resolving some of the issues surrounding provenance, title, and authenticity if the artwork is created with an NFT in mind; however, the technology can also complicate these same issues—most notably copyright issues—especially with existing artworks not created with NFTs in mind. The legal concerns surrounding NFTs are uncertain and only just emerging, and as is the case with most nascent technology, regulation lags. Yet, the potential benefits to artists are encouraging and ever evolving.

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