NFT artworks and threshold of originality

Traditional forms of art are finding new audiences and ways of expression as non-fungible tokens (hereinafter “NFTs”) are consolidating their position in the mainstream. As a natural consequence, there is also a growing interest for NFT related copyright questions as artists and creators want to protect the created content and pieces of work. Still, following the fundaments of copyright law, all existing creations cannot be protected to an absolute extent. For example, a so-called threshold of originality must be fulfilled to achieve copyright protection for a specific work. This means that something created, e.g., an NFT that is expressing a digital artwork (hereinafter “NFT artwork”), must be enough original, as the creation in question is otherwise not eligible for copyright protection. NFT artworks are like traditional forms of art created to concretize to some kind of tangible expression, e.g., a picture, a video, or a composition.

This brief article highlights some of the central considerations when assessing the threshold of originality within the context of expressions of art through NFTs in Finland and more generally in Europe. If you are new to the subject matter and wish to get a more overall picture on NFTs and thereto related copyright aspects, you may read our earlier published article which is found here.

Threshold of originality

One of the key points when evaluating the copyrights related to NFT artwork is the threshold of originality. In order for an NFT artwork to enjoy copyright protection, the creation must embody the author's own artistic work, i.e., it must be the author's own artistic work that was born from the author's free and creative work. This starting point is based on the Berne Convention adopted in 1886, setting the foundations of international IP laws as we know them today.

To reach the threshold of originality set by the conditions in the Berne Convention, an NFT artwork must be considered a product of intellectual creation, both independent and original in its characteristics. Even though, the Finnish Copyright Act does not explicitly address the claims of originality and independence referred to in the Convention. Nevertheless, the Act states that if a person, in free association with a work, has created a new and independent work, his or her copyright shall not be subject to the right in the original work. Thus, it can be deemed that the threshold of originality is expressed and confirmed through the Act, even if it is not specifically regulated therein.

The type and artistic quality of the NFT artwork

According to the Finnish Copyright Act, a work can be, for example, a composition or a literary work, but the Act also states that a work can appear "in other ways". This has been considered to reflect the legislator's preparation in case other types of works are created alongside the types of works listed in the Act. In this regard, it can be argued that minting of an NFT is to be considered to fulfill the characteristics of the creation of an artistic work – it is at least undeniably a process of creation that can result in an NFT artwork. This view is also supported by the fact that minting can be classified as production of a copy, as referred to in Article 2 of Directive 2001/29/EC, to which the author of the work has exclusive rights.

Required that the NFT artwork’s characteristics are assessed as original and independent, the threshold of originality is exceeded. The fulfilment of the original and independent characteristics requires that the NFT artwork is judged to be of such nature that no one else than the creator of the work in question could presumably create a similar work in their independent creation. However, this assessment does not evaluate the qualitative or artistic level of the work, i.e., a hastily prepared simple NFT artwork can enjoy copyright protection in the same way as a creation that is the result of a long creative process. On a theoretical level, it is also possible for two people to create if not identical at least very much similar NFT artworks independently without being aware of each other or each other’s creations.  If this were to happen, both authors would receive independent copyright protection for their work independent of the other work and the other author. Yet, in the context of NFT artworks and thereto related NFT minting, often characterized by horserace to get exclusive rights to a new phenomenon in popular culture, the probability of several independent copyright protection for a similar if not identical work is to be deemed higher than theoretical.

Conclusion

To be able to talk about NFT artwork within the framework set by the hallmarks of a work as meant by the Finnish Copyright Act and the Berne Convention, the threshold of originality must always be considered. That is, as with other works, ignoring the originality threshold could lead to a situation where a group of people would mint thousands of NFTs embodying the same stone block, and claim that each of them is a unique work enjoying copyright protection, for example only on the basis that each of the works has a unique identification number or otherwise differing content in the metadata accompanying the NFT itself. Therefore, given the nature of the context, when evaluating the qualifications for copyright related to NFTs, the threshold of originality can be deemed as an increasingly important measurement.

However, merely meeting the threshold of originality does not lead to a specific NFT artwork being able to effectively enjoy copyright protection. In connection with this assessment, other essential factors are to be brought up, e.g., the presumption of authorship, the threshold for making the work available to the public, the need for effective means of enforcement, et cetera. You can find more general information on copyrights and their use in business activities in our previously published article.

We at Nordic Law are happy to help would you have any questions regarding copyrights and other IPR within emerging tech.