NFTs & the law: Definitions
The following short-form definitions are intended as a supplement to provide additional context and background for the Ask an Attorney column written by Lance Koonce, a partner in the law firm Klaris who specializes in Web3.
Copyright interest. Under the laws of most countries, works of authorship are protected under the copyright laws. Creators of such works are given the exclusive right to make copies of the work, distribute the work, perform the work, display the work, and create adaptations (derivative works) from the work. All of these interests may be divided into smaller portions and limited by time, geography or other aspects, which can be licensed or assigned to others (e.g., the right to distribute a television show in Canada for two years).
Works of authorship. Virtually any work created by the human mind, including but by no means limited to photographs, paintings, drawings, sculpture, textual works, music, video, graphic designs, and video games.
Intangible work. There is a distinction between the physical embodiment of a work of authorship – for instance, a hardcover novel, a vinyl record or an oil painting – and the underlying, intangible work of authorship itself. Creators can sell the physical item without losing copyright in the intangible work. The purchaser of the physical item can – under a rule called the “first sale doctrine” – read, listen to, and/or display that particular physical embodiment of the work, and can sell it to a new purchaser, but they cannot reproduce it, distribute it, perform it, or create derivative works from it.
Derivative works. Creators of works of authorship have the exclusive right to create new works based on (derived from) their original works. A derivative work can come in many forms, including adaptations, abridgements, arrangements, translations. An example of a derivative work would be a TV show adapted from or based on a book, or a sequel to a film.
Public location. For the purposes of privacy laws, public locations are those owned publicly, such as sidewalks, streets, municipal parks, and the like. Some locations that are open to the public – such as a shopping mall – are actually privately owned and may have rules about taking photographs on the property.
Commercial use. For right of publicity purposes, a commercial use is any use that directly or indirectly advertises or promotes a company or a product, or that in support of a for-profit business, such as use on a corporation’s website. Mere sale of an image is not typically a commercial use.
Right of publicity. A right, usually under state law in the US, which protects against the misappropriation of an individual’s name, likeness, or other recognizable aspect of that person’s identity for commercial use.
Written consent. Where depiction of the likeness of an identifiable person may violate either privacy or publicity laws, a photographer may obtain a written statement confirming that a person depicted in the photograph consents to certain or all uses of their likeness in the photograph.
Public domain. The public domain consists of works of authorship that are not protected by copyright law, typically because copyright in the work has expired. Copyright protection exists for any work only for a finite period of time, and once that time period (which can vary depending on various factors) ends, the work becomes part of the public domain. Works can also enter the public domain for other reasons; for instance, U.S. government works are considered public domain, and creators can choose to dedicate their works to the public domain. Works that are in the public domain can be used by anyone, for any purpose.