Dancing in the Dark: Exploring the Collision of Copyright with NFTs & the Works They Represent

The artist creates, by the mixing of his hands and his mind, an expression of story, life, or memory that, when offered to the world, grants others the ability to recall some element of the human experience through a perspective different from their own. The law has long recognized one’s right to one’s intangible property, offering copyright protection to authors for their works. This protection does not exist at the time of a legal declaration, but rather at the time the work is created. However, copyright protection is not unlimited, and authors do not enjoy a monopoly over every expression they create. Those expressions must be sufficiently original. This Comment addresses the application of copyright law to the emerging crypto-assets known as nonfungible tokens (NFTs). The purpose of this Comment is threefold, but ultimately it seeks to prove that NFTs are not subject to copyright protection. First, this Comment seeks to prove the existence of a Natural Right Doctrine in copyright law. This Comment tracks natural rights to copyright protection from Locke and Blackstone, through English statutory and common law, the U.S. Constitution and the Federalist Papers, U.S. case law, and Title XVII of the United States Code (Copyright Act). This is done to demonstrate that the basic tenets of copyright protection do not and need not change as new technologies emerge. Second, this Comment seeks to explain the nature of NFTs and to distinguish them from the works to which they attach. An NFT is a script of computer code called a token, which acts as an authenticator on a blockchain for the work it is attached to. This Comment seeks to explain the difference between NFTs and cryptocurrencies, the nature of each, and blockchain technology. Finally, this Comment seeks to prove that the Merger Doctrine bars copyright protection of NFTs. This Comment posits that NFTs are not protectable because their function as an authenticator is so tied to their expression as unique code that protection of an NFT would grant the author a monopoly over the entire idea of non-fungible tokens rather than that singular expression. This Comment compares the function of an NFT to that of a key for an application programming interface (API) and examines the implications of the idea/expression dichotomy on computer code raised in Google v. Oracle (2021) to prove that NFTs are not subject to copyright protection under the Merger Doctrine