By Aaron Steinberg, 2L member
In 2020, the non-fungible token (NFT) marketplace erupted. NFTs are unique, digital collectibles that are often sold by artists and creators to their fans. Artists and creators can create, or “mint,” NFTs on blockchain-based marketplaces, such as OpenSea. When an NFT is sold, the buyer receives the NFT in her digital wallet. Since the NFT is embedded on an immutable, transparent blockchain, the buyer can seamlessly prove her ownership of the NFT.
Today, NFT sales have surpassed an aggregate of $14 billion. Fans continue to demand NFTs as a-list creators embrace the new technology to develop creative sales campaigns.
In November 2021, the award-winning screenwriter and film director, Quentin Tarantino, dove headfirst into the space by announcing his own Pulp Fiction NFT collection. Each NFT in the collection represents a chapter from Pulp Fiction and includes those scanned pages from the original, handwritten script. While Tarantino fanatics were eager for the opportunity to own an NFT from the collection, Miramax, the studio behind Pulp Fiction, filed a complaint against Tarantino in federal court in the Central District of California. (Miramax, LLC v. Tarantino, (C.D. Cal. 2021)).
Although Tarantino wrote and directed Pulp Fiction, Miramax owns the intellectual property associated with the film. Primarily, Miramax claims that these scanned pages constitute derivative works, and the sale of them infringes upon its copyright because Tarantino’s 1993 contractual agreement does not grant him a license for the sale of NFTs. Additionally, Miramax objected to Tarantino’s use of the Pulp Fiction branding in association with the sale.
While Tarantino granted Miramax extensive rights in Pulp Fiction, the contract defines “Reserved Rights” that were retained by Tarantino, which include the “soundtrack album, music publishing, live performance, print publication (including without limitation screenplay publication, ‘making of’ books, comic books and novelization, in audio and electronic formats as well, as applicable), interactive media, theatrical and television sequel and remake rights, and television series and spinoff rights.” Miramax argues that NFTs, as a one-time sale, do not equate to the publication of the screenplay which Tarantino reserved the right to do in his contract.
However, Tarantino believes that the sale of a unique, scanned screenplay excerpt falls within his “screenplay publication” reserved rights. Since Tarantino is selling a single copy of each NFT in his collection, the question arises whether the selling of a single, unique copy constitutes a “publication.”
The court will look to copyright law’s definition of “publication” in 17 U.S.C. § 101, which defines the term as “the distribution of copies…of a work to the public by sale or other transfer of ownership.” Furthermore, the court will look to industry custom at the time the parties entered into the 1993 agreement.
In the event that the dispute does not settle, this lawsuit could provide interesting insight into a court’s interpretation regarding intellectual property associated with NFT sales. A finding in favor of Tarantino could result in an explosion of other content creators launching NFTs in conjunction with sought-after mementos.