APB on an NFT

Who copped Fred Simian?  Is it IP theft, copyright infringement, or plain old-fashioned larceny?  Most of America’s lawyers want to know the answers, even though they do not represent any party to the seemingly nefarious affair.

Okay– as Sargeant  Joe Friday would say: “just the facts.”  Fred Simian is a non-fungible token (an unique electronic image without physical embodiment)  owned (per the definitive block-chain record of NFT ownership) by actor Seth Green.  Its image, which Green was using as a basis for an upcoming TV show and which thus had apparent commercial value (putting aside that the market for NFTs issued by Bored Ape Yacht Club have greatly appreciated in value since issuance even without commercial utilization) was somehow stolen; at least, it is no longer in the possession of Green, but was sold on the trading market to an identified third party.

Access to the image was taken and was thus possessed by a second party thief who passed possession to a third party purchaser on Open Sea (the exchange for NFTs).  Imagine you have a house and the deed is recorded at the registry.  You live in the house and own title to it.  Then someone throws you out of the house and moves in.  That person is in possession.  But does not own it.

It is not even clear whether historical laws concerning theft apply (a thief cannot pass good title to stolen goods to a buyer even if the buyer is innocent).  Does the law of copyright apply instead?  Would the result be different in copyright–that would be a dumb result, wouldn’t it.

NFTs are not crypto currency, though they are protected (allegedly but apparently not yet fully in sense of possession) by blockchain technology.  That technology is not unique to currency; it is an open ledger system with many other applications, including so-called smart contracts which are a type of legal agreement which could involve anything (think, the sale of 100 barrels of herring can be sold over blockchain).

It is indeed a brave new world.

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