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In the World of NFTs, Who’s Making Money Off Your Image

NFTs

IMAGINE THIS: YOU walk into a contemporary art gallery and see a digitally rendered image of your face alongside an unsavory cast of industry compatriots, and as you get closer to your own face staring back at you like some kind of gallery mirror, you notice that the description placard has your full name on it and a little round orange sticker that seems to denote someone has paid money to enter their name into the artwork’s ownership ledger.

You might be disturbed, not only that your name and face have been used without consent, but that your inclusion in this gallery was crafted as a tacit nod to an “investment-driven” art world of which you want no part.

This speculative IRL example mirrors the emergence of “portrait piracy” in the non-fungible token (NFT) market: part identity theft, part exploitation imagery, part cryptocurrency side hustle. (NFTs are not tied to ownership of actual—digital or physical—artwork, but a receipt of the purchase of a record on a blockchain, like a notarized certificate of authenticity for digital collectables.)

Two NFT collections have demonstrated how artists seeking to monetize nonconsensual images are using them to lucrative ends. MetaDeckz and Cipher Punks were collections of unauthorized portraits and names (somewhat resembling sports trading cards) of prominent internet personalities (popular Twitch streamers and digital rights advocates, respectively) set to be offered as NFTs. In the case of the Twitch streamers, the NFT collection was based on hand-drawn sketches of video stills from streaming footage. While the Cipher Punks NFT drop was also of fan art, it turned out the collection included multiple people from the information security and digital rights spaces who had faced allegations of toxic behavior and/or gender-based abuse.

The idea that someone created a collection of marketable NFTs without having apparently done much research on the featured individuals or bothering to contact them is cringeworthy, but—even more concerning—these incidents also show how few safeguards there are in NFT marketplaces like OpenSea. Eventually, after individuals featured in the NFT drop raised objections, and after negative press stories began to circulate, both issuers apologized and took down their collection. Tellingly, it was the team behind the Cipher Punks NFT sale, and not the OpenSea marketplace, that took down the collection. Writing a Medium mea culpa post, the team took responsibility for the unauthorized images, saying “we apologize to each and every Cipher Punk for not taking consent and creating your NFTs.” But the incident remained a proof of concept for digital rights abuse and showed one of the ways the Web3 ecosystem could be used nonconsensually.

Archivists are already highlighting shortcomings of the new VC-backed Web3 ecosystem. The site web3isgoinggreat.com, for instance, humorously chronicles Web3 misfirings, such as the abuse and harassment faced by some beta testers on the new platform of one of Silicon Valley’s biggest companies. If abuse can happen in an ecosystem built around strong identity management, where interactions are based on anonymity, blockchains, and cryptocurrencies, it seems a new type of web architecture has been launched with very little recourse for victims of harassment and without regard for the harm it could bring about. Now imagine an NFT drop doxxing ex-partners, ex-colleagues, or sex workers; dead-naming prominent trans people; or shaming adult film stars by using both their stage names and real names. Someone could even mint sexual exploitation imagery of an ex-partner. Discussing worst-case scenarios and threat-mapping avenues of exploitation is vital because precedents of abuse in the digital realm abound.

THE LEGAL LIMITS of digital imagery are heating up, and the Web3 ecosystem is challenging norms around reproduction and reproducibility. Global brands have seen NFTs issued for images of products they hold copyrights and trademarks on. This has led to two high-profile brands taking legal action against NFT minters: Hermès is suing an artist for selling an NFT based on one of the company’s signature handbags and has accused the artist of “ripping off” its trademark, while Nike is suing a shoe reseller it has accused of trademark violation. These two examples show that brands may have recourse over unauthorized NFTs, but the case is not so clear for individuals who have had their portrait “pirated” as a digital asset.

The question of who “owns” the representation, reproduction, and rights of our physical likeness is complicated and depends on where you are, and even who you are. While there is a debate regarding ownership of the likeness of one’s full body, as in the case of a French doctor who prompted outcry by attempting to sell an NFT of an X-ray of a victim of the 2015 Bataclan theater siege without consent, we will focus on portraits for the time being.

Photographs are not copyrighted by default, but they gain IP protection once registered with an official copyright agency (like the US Copyright Office). If a photographer copyrights (or has a copyright application in progress) an image they took, in most cases the photographer holds the rights over that image, even if it is of you.

In recent years, this issue has received greater attention. Writing in The Cut, model Emily Ratajkowski chronicled her experience of being sued for posting her own image. Performers ranging from Ariana Granda to Dua Lipa to rapper Nas have faced legal action for posting paparazzi-snapped images of themselves on their own social media pages.

In 2021, the now adult who appeared on an iconic Nirvana album cover alleged that he had been a victim of child sexual exploitation imagery and sued for damages, saying his image had been taken without consent; his case was dismissed after defense lawyers claimed in court that the alleged victim was seeking fame.

Meanwhile, a rules change governing licensing rights for nonprofessional athletes in the US has made it possible for university sports stars to monetize their image. In Europe, the legal struggle over the “right to the protection of one’s image” has been a hot-button issue before the European Court of Human Rights for decades, though most cases have involved media portrayal of individuals, and no case law regarding digital assets like NFTs has yet emerged.

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