Selling Art as NFTs? Register Your NFT Artist Name with a Trademark!
Are you an artist selling NFTs and making money? Getting Clout on BitClout? You probably are wondering whether you should file for a trademark to protect your art business and the new stream of revenue from NFTs. Tom Brady, The Chainsmokers, The Upper Deck Company, and The Andy Warhol Foundation all recently filed for trademarks associated with non-fungible tokens. More artists will follow.
If you are an artist selling art through NFTs as a business and not a hobby, you must consider taking the proper legal steps to protect your brand and your artwork. It is even more imperative to register your name if you are using a pseudonym name, like many successful NFT artists (i.e. Beeple).
If you are using a pseudonym or not your real name, you especially want to prevent others from using the same name and have the ability to immediately enforce your rights against a copycat on the internet. Internet is tough to police, but blockchain maybe even harder. So, how do you prevent someone from stealing your name and uploading their own art on an NFT if blockchain is immutable? What remedy will you have if someone does use your name and starts selling art in your name?
Enforcing Trademarks against NFT Bad Actors
I think a lot of people are worried about NFT bad actors. How does an artist protect his name if a copycat uploads counterfeit art on an immutable blockchain? Can the art be taken down? What if the counterfeit or fake art sells for hundreds of Ethereum? Will the copycat get to keep the return from that sale? These are only some of the issues that must be considered if you plan to exploit your artwork with NFTs. But protecting your name in the first place with a federal trademark is an important first step.
Why? Well, if you hold a registered trademark you will be able to sue that infringer for statutory damages without having to prove any actual damages. So if a copycat uses your name in an infringing manner, you would have the benefit of receiving statutory damages. That’s possible only if you hold a registered trademark. Without it, you cannot get statutory damages for any infringements that occurred before you received a registered trademark. You can still argue for actual damages but not statutory damages. Statutory damages can be a strong deterrence. (Often, a plaintiff will elect statutory damages when it is unable to prove actual damages because of certain situations, such as destruction of the counterfeit goods, or poor or unreliable record-keeping by the defendant such as hidden crypto wallets).
A court may award statutory damages ranging from $500 to $100,000 per counterfeit mark for each type of goods or service(s) sold, offered for sale, or distributed on an NFT blockchain marketplace (or anywhere else). If the violation is willful, statutory damages could increase up to $1,000,000 per counterfeit mark for each type of goods or service(s) sold, offered for sale or distributed in an NFT marketplace. I suspect copycats would upload counterfeit art on separate NFT marketplaces. Each NFT minting by a copycat across the NFT marketplaces should be an award of statutory damages. For example, if a copycat mints a counterfeit art across 5 NFT marketplaces, then a trademark holder may be entitled to up to $5,000,000 for willful infringement (5 x $1,000,000) in statutory damages. And don’t forget attorney’s fees. Yes, you can get your attorney’s fees paid but you need to possess a registered trademark.
Trademarks help you enforce and protect your Artist brand!
If you are an artist, you are a brand and your NFT art is your product. You need to protect both! Your brand is protected by trademarks and your art is protected by copyrights. See my article on Cryptorights vs. Copyrights.
(btw follow me @alexkarana_deSquire on BitClout).