NFTs and creative works

Abstract

Abstract This chapter examines non-fungible tokens (NFTs) that purportedly embody rights in creative works, revealing a fundamental disconnect between marketing claims and legal reality. It traces the evolution of NFTs from technical experiments through speculative fervor, collapse, and resurgence, establishing the economic and social context for legal analysis. The chapter identifies two dominant issuance models: the standardized approach using platforms like OpenSea and Mintable, and the bespoke approach employed by major issuers, including Yuga Labs and Dapper Labs. For standardized issuances, an examination of the terms of service reveals that while claiming to be passive facilitators, platforms retain substantial control and explicitly deny any property link between NFTs and underlying creative works. For bespoke issuers, the analysis demonstrates a mischaracterization of property law, including claims that ownership is “mediated” by blockchain technology, attempts to condition property rights through contractual terms, and intellectual property licensing frameworks that are indeterminate and potentially invalid across jurisdictions. Nevertheless, the chapter argues that NFTs possess genuine commercial potential, which could be unlocked if they were structured in a manner consistent with established private law frameworks rather than attempting to circumvent them, as is the case in the present landscape. It concludes by proposing legitimate commercial applications, including pure digital collectibles, access-gated services, and digital certificates of authenticity that embrace legal frameworks while delivering meaningful market value.