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40 Santa Clara High Tech. L. J. 1 (2024)

handle is hein.journals/sccj40 and id is 1 raw text is: NON-FUNGIBLE TOKENS (NFTS) AND COPYRIGHT LAW* Tyler T. Ochoa** The concept of using non-fungible tokens (NFTs) to facilitate and authenticate sales of digital art dates back to 2014; but it took several years before the concept really captured public attention. Since copyright law governs the reproduction of works of art, including digital images, the connection to NFTs seems obvious. Yet, copyright law is only tangentially related to NFTs, for two reasons. First, buying an NFT does not, by itself, convey any rights to reproduce or display the work associated with that token. Instead, those rights are governed entirely by the contract that accompanies the sale. Second, minting and selling an NFT, by itself, likely does not violate any of the exclusive rights provided by copyright. As a result, although copyright may provide a useful tool for artists seeking to monetize their art, it is probable that its usefulness will be limited in lawsuits concerning NFTs. Ultimately, other legal tools (such as trademark law) may provide better relief when litigation concerning NFTs becomes necessary. * Copyright © 2023 by Tyler T. Ochoa. Permission to reproduce this article with attribution to the author and with citation to this volume is granted according to the Creative Commons Attribution Non-Commercial No Derivatives License, http://creativecommons.org/licenses/by-nc- nd/4.0/legalcode (last visited Sept. 1, 2023). ** Professor, High Tech Law Institute, Santa Clara University School of Law. A.B. 1983, with distinction, J.D. 1987, with distinction, Stanford University.

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