Apes, Punks & Phunks: Adventures from the frontlines of the IP wars

Gather ’round kids, exciting and fascinating drama is afoot and you know you want to hear all about it. Assuming you are excited and fascinated by IP shenanigans, because really who isn’t right? While I want to just charge right into the theft and murder, oh yes dear reader there is theft and murder, I worry that I sometimes go to fast and leave people behind. So I’m just going to assume that you understand that copyright means the copyright holder (often the creator, but not always) retains all rights and no one else can do anything, and conversely public domain means no one retains any rights and anyone can do anything. Between those two extremes there’s a million miles of grey area which has been somewhat navigated by Creative Commons, who create copyright licenses that intentionally wave some rights while retaining others with the intention of fostering creativity and sharing. For example this blog post is published under a CC-BY license which means while I retain copyright or my words, I also allow anyone to use my words, expand on them or make derivative works and even sell that so long as they credit me as the original creator. Which is super totally cool. I’ve stumbled across my work in countless places, and people have ended up here because they saw something I wrote somewhere else and followed the breadcrumbs. Thanks Creative Commons!

OK, getting back to the juicy stuff. A very popular thing happening in the NFT space right now is for people selling large collectors of Avatars to grant commercial and derivative rights to anyone who buys those NFTs. I haven’t seen any using Creative Commons, because that would be easy and straight forward. Instead most often they have some hacky chopped together Terms of Service filled with rando copypasta from various other projects and it’s confusing AF. The gist being if you buy an NFT you can use it in other work and sell that work without issue. Essentially they are transferring the IP rights to the buyer, which has created a vibrant market for derivative works, and is helping fuel the overall growth of not just individual projects but also the entire NFT community and ecosystem. So this is a good thing.

But as we know, nothing is ever as straight forward as it seems. And this is where shit starts getting messy.

For a few months everyone was trucking along peacefully making derivative work of NFTs they bought that allowed such a thing, and everyone was happy and there were flowers and rolling fields of green grass and sunshine and then Taylor.wtf burned an ape. Taylor is an artist/musician/producer and also a shit disturbing agent of chaos. I say that as a high compliment and would encourage everyone reading this to aspire to such a description. In NFT parlance, “burning” something is to intentionally send it to a wallet that no one has access to—essentially removing it from circulation. When I say “an ape” I mean one of the Bored Ape NFTs made by the Bored Ape Yacht Club (arguably the hottest and fastest growing avatar collection at the moment). So he burned an ape and then put a video art project of that Bored Ape being set on fire up for auction on OpenSea (the largest NFT marketplace). At first people were just shocked that he’d burnt an ape (as they were trading for about $4k each at the time – though burning money is a long established form of conceptual art perhaps most famously employed by The KLF who literally burned a million GBP) but it got much more interesting when BAYC filed a DMCA notice and had the fire video taken down.

Their position was that as Taylor had burned the Ape before releasing the video, he was no longer the owner and thus no longer had rights to use the work. However! As they were not the owner anymore either it’s questionable about why they felt the need to intervene, which they clarified by saying they were doing so with respect to the current owner – and would do the same for any ape transferred from one party to another if the previous owner kept using it. However however! Since the ape was burned, by all understanding it has no owner, so whose rights were BYAC defending? No one came forward claiming to own that wallet and protesting, and no one could prove that the wallet wasn’t actually Taylors. Or, anyone else who might claim to own it. Point being, no one said “I own this thing and I object to how it’s being used by someone else.” Once this came to light it seems BYAC realized this was a huge steaming pile of shit they’d walked into, and cautiously backed out of it. The video was re-listed elsewhere without protest and remains online.

While Bored Apes are one of the hottest new Avatar projects, the grand daddy of them all is unquestionably Crypto Punks. It would just be bad form not to include them in this drama fest, luckily they are a magnet for it all. Let’s start with CryptoPunk #3100 – currently the highest selling Punk which sold earlier this year for 4,200 ETH or effectively just shy of $9 Million. There’s been much discussion about how an NFT is the token, and the image attached is just representative of the token – that is when you buy an NFT you aren’t buying that image so much as the digital token on the blockchain which is represented by that image. The conceptual artist Ryder Ripps decided to play with this idea by pointing out that the image representing the original CryptoPunks was a 24×24 pixel graphic entirely generated by a script. Ryder recreated #3100 by hand in 4000×4000 and minted it on several platforms. Same image on each, but each being a different token, different contract, and thus a different NFT. An interesting experiment that got much more interesting when Foundation was served with a DMCA notice by Larva Labs, the company who made CryptoPunks, and were forced to delist Ryder’s NFT. One might think “serves them right, that was obviously plagiarism” and many did in fact think that, but it seems many people don’t know about fair use and parody and this is where it got much more interesting- Ryder appealed the take down. You see, under the DMCA, a copyright holder can issue a take down notice to any service if they feel their IP is being infringed upon and the site has to immediately remove the infringing work, however if creator of the work that was taken down believes the action was erroneous, they can file an appeal and this puts the onus back on the company or person who filed the DMCA notice originally – and they now have 10 days to file a lawsuit supporting their claims – if they don’t they then are essentially conceding that they don’t have the legal position to support their initial action and the site in question is free to reinstate whatever was taken down. And again, because US Copyright law does specifically call out fair use and parody, Larva Labs backed down and Foundation has just reinstated Ryder’s Punks.

This is a pretty decisive victory and will likely be taken into account going forward, however there’s another very related situation at play that was going on before all this went down and came to a head before this was resolved. Enter the CryptoPhunks. Who make it very clear in their manifesto that this project is social commentary and a parody aimed at “flipping off the punks.” While Ryder essentially just scaled up the image of a punk in his work, the Phunks actually changed the art. Is it a significant change? That’s up for interpretation but when you are talking about a source image that is only 576 pixels to begin with, how much of a change is needed for it to be significant? Most notably, while all 10,000 CryptoPunks are facing right, the CryptoPhunks are facing left. While this was criticized as a “low effort rip off” by more than a handful of people – it’s an obvious enough difference to be immediately identifiable something that could not be said about Ryder’s Punks. But wait, there’s more! In addition to the flip, CryptoPhunks added a 1 pixel wide outline to the box the Phunk sits in, which is an unquestionable artistic change. Again, we’re talking about a 24×24 pixel image, so very subtle changes are actually pretty significant. You might think these changes made things easier for them, but you’d be wrong. The first take down of the Phunks happened almost as soon as they launched in what seemed to be an editorial decision on the part of OpenSea where they were listed. To their credit OpenSea has been working to take down fake accounts selling fraudulent NFTs and it’s unclear if they understood that CryptoPhunks was a stand alone project and not something misrepresenting itself as official, and this take down appears to be have preemptive and hasty.

After much community uproar OpenSea reinstated the Phunks account and heated discussion started happening on Twitter which involved many CryptoPunk owners disparaging the Phunks and calling the project a “low effort rip off” or “blatant plagiarism.” Ironically, those are “low effort” criticisms that fall apart as soon as you read the project’s mission statement, because while it might not be something that is creatively appealing to everyone, it definitely has some thought and intention behind it. As noted earlier many people in this space don’t seem to understand how copyright or IP works or is applied, or the importance parody and fair use have in culture which can be seen in the reaction to the Phunks from the “NFT community” (if there is such a thing) at large. But things did not end there, OpenSea pushed back with several statements from employees on Twitter which imply they see derivative projects as somehow lesser than original works, and the longer term viability of the Phunks future remained in question. This didn’t slow sales at all, and it’s entirely possible that the vocal outrage from CryptoPunk owners actually served as marketing for the Phunks. Which, again, was kind of the whole point. The Phunks laid a trap and the Punks walked right into it. It kind of reminds me of a time when a music critic friend of mine got punched in the face by the guitarist of a band he’d recently accused of being brainless thugs. Anyway, having freshly filed their DMCA takedown against Rider Ripps, Larva Labs repeated the effort and sent a take down notice to OpenSea, who promptly removed the Phunks from their site. Again.