US copyright and trademark offices launch joint study on NFT impact on IP rights

Non-fungible tokens (NFTs) have gone mainstream in the past couple of years, and in that time, they have had a great impact on several sectors, one of which is intellectual property rights. This impact will be the subject of a recently-announced joint study by the U.S. copyright and trademark offices.

The United States Copyright Office and the United States Patent and Trademark Office (USPTO) announced that they would be conducting the study, responding to a recent request by two lawmakers to establish how NFTs will change the IP field soon.

Senator Thom Tillis (R-NC) and Senator Patrick Leahy (D-VT) formerly requested last month that the USPTO and Copyright Office work together on the study. The two senators, who are the highest-ranking members of the Senate’s intellectual property subcommittee, called on the two agencies to look into what IP rights relating to NFTs look like today and how they are set to evolve in the future. They recommended that the two agencies conduct the study before July 2023.

Some of the questions that the two lawmakers posed were:

  • How do transfers of rights apply? How does the transfer of an NFT impact the IP rights in the associated asset?
  • How do licensing rights apply? Can and how can IP rights in the associated asset be licensed in an NFT context?
  • What intellectual property protection can be afforded? What IP protection can be afforded to the NFT creator? What if the NFT creator is a different person or entity from the creator of the associated asset?

The two offices have now confirmed that they will be undertaking the study. They also revealed that they would involve other stakeholders from the NFT industry and the two legislators.

Despite being around (or at least in the mainstream) for just a couple of years, NFTs have been at the heart of many IP-related legal tussles. The most prominent involves the largest athletic apparel company Nike which has been going after popular online sneaker reseller StockX. The latter launched an NFT series based on Nike’s shoes which, according to its lawsuit, amounts to knowingly selling counterfeits. 

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