It’s probably easy to say that, at this early point in the game, counting the things that aren’t at risk is probably easier than counting the risks associated to digital representations of products. The risks at this point are countless—you have copyright issues, trademark issues, securities issues, anti-money laundering concerns and then that’s just the legal enforcement side of things. But from the artistic viewpoint, content clearance is going to be one of the major points that brands should make sure to double check. It may feel a little bit like starting at the beginning, but it’ll be difficult to enter the space and assert dominance over any fraudulent postings and creations if you don’t even know if your future metaverse plans are covered. Run clearances the same way as you would for any other type of campaign—check to make sure that contractual assignments and licenses of rights include NFTs, and double check things like the grant of rights of publicity if you’re choosing to use a person’s likeness.
As a person that works with visual artists, my additional caution would be to double check and see if the contracted creators of your company’s photos, graphics, and digital images, the “authors” of those copyrighted works, have waived their moral rights to the creations that they have made. While the Visual Artists Rights Act may only cover works of a recognized stature, it wouldn’t be the first or last time that a brand graphic or photograph has gone viral. If a brand plans to monetize these in the form of an NFT, it will be a lot less of a headache to check a contract than to create an NFT and then get a letter from an artist saying that their work was never intended to be an NFT and by putting it into that webspace it’s detrimental to their honor or reputation as an artist.
Another first step that I would offer brand protection professionals as they begin their strategies is to educate themselves on the space. Not all NFT marketplaces are the same, and the usage and intent of NFTs varies greatly. Whatever solution the legal world creates for these infringement issues is hardly going to be one-size-fits-all. So, treating it like that is only going to cause more headaches down the road. It’s okay to start with what you know—Digital Millennium Copyright Act (DMCA) takedowns, contacting marketplaces to take down listings of infringing works—but thinking creatively, and in a multi-disciplinary way is what’s likely to get you farther. NFTs have been in the art space since 2013, and their uses have been everything from art, authenticity and beyond. In the legal context, it’s extremely easy for us as professionals to try and find a box that we can fit a new issue into, however, NFTs and the metaverse are far from that and treating them as such turns the enforcement problem into the square peg into a round hole problem. Start with what it feels like and go from there. We still don’t have set rules for the e-commerce space, but with the creativity and collaboration strides that have been made, a once unruly space is far more manageable than it was. Sometime in the future, the metaverse will feel just the same.