Right of publicity is one of the many intellectual property concerns associated with non-fungible tokens. It is the protection against a commercial use of someone’s name, likeness, or persona without their permission. While there is no federal law governing right of publicity, several states have common law causes of action or formal legislation granting such protection. Traditionally, the creator of an NFT that violated someone’s right of publicity would be held liable for a violation of this right. However, for the platforms hosting the NFTs or facilitating their sales, there is also a possibility that the platforms themselves could be liable such NFTs. It’s a good idea then for NFT marketplaces to include right of publicity in their agreements with the NFT creators who are using their platforms. In looking at ten of the largest NFT marketplaces, many of them include in their terms of service governing the relationship between users and the platform some sort of protection against illegal uses of intellectual property, but all in slightly different ways.
Most of the examined platforms used prohibitive language when it came to the platform user’s agreement with the site. In agreeing to use the platform, the user consents to the limitations imposed by the platform itself on the type of creative work and sales allowed. The limitations tend to be general but include prohibitions against works that infringe upon another’s intellectual property, including right of publicity, or any other illegal use of a work or conduct by a creator. Several forms of intellectual property tend to be listed, including right of publicity and right to privacy, but there are typically no separate clauses.
Less common was assertive language where the platform user inherently affirmed through use of the site that they have legal ownership or licenses for the intellectual property in their created tokens. In the terms of service, there is language that the user “warrants” or “represents” to own the necessary intellectual property or otherwise have the proper licenses and abilities to sublicense for their works. Finally, only two platforms did not mention right of publicity at all.
In the end, the type of language used in the terms of service may not matter when it comes to potential liability in right of publicity offenses within NFTs. Last year Ohio State University was successfully able to argue a right of publicity claim in the 6th Circuit against Redbubble for infringing work sold by users on the platform’s website. In assessing the right of publicity claim, the Court only looked at Redbubble’s User Agreement in order to define the working relationship between the product and the platform. In finding that Redbubble was “more than a passive facilitator,” combined with Ohio’s broad statutory language, the Appellate Court found Redbubble liable for right of publicity.
There is no one way marketplace platforms are seeking to protect themselves against violations of right of publicity. It could be that the language used in the terms of service will matter if a platform can use the language to show the level of involvement between the platform and the NFTs sold on them. It seems what will be more significant however, is the actual operating procedure for the platform in terms of accessibility to the public to become a creator, facilitation of sales, and connection to the commerciality of the NFT. As there is no federal right of publicity though, the terms of service and operations of the platforms face the difficult task of encapsulating the wide variety of state statutes and causes of action for right of publicity.
Ohio State Univ. v. Redbubble, Inc., 989 F.3d 435, 450 (6th Cir. 2021)
The material contained in this post is provided for informational purposes only and does not constitute legal advice nor in any way may it constitute an attorney-client relationship. The views expressed are those of the author and are not to be attributed to Rosario Tech Law, LLC or any of its clients. Always seek legal counsel prior to taking any actions based upon any information contained herein.