A Non-Fungible Future?

There was once a man who bought an original sketch in an inventory-draw-down sale. The sketch was done during the course of employment by a moderately well known designer. So far, so good.  The buyer was an EBay seller, and he created dozens of prints of the original sketch, which he auctioned on EBay week after week for years. That was questionable.

Lawfully, one cannot purchase a drawing, painting, photograph, cartoon, musical record, novella or novel  (even in e-book form) and proceed to create copies and sell them. Not unless the original creator formally assigned the copyright.

Now, there is Blockchain, and Non-Fungible Tokens, or NFTs. It seems that a single work of art that is sold as a NFT can be sold on, but not duplicated, and a modest royalty can be paid to the original creator with every down-market sale and resale.

Can creatives and celebrities rejoice? 

https://www.hickmanbecker.com/celebrities-and-creative-geniuses-rejoice-nfts-part-i/

Lexology link:

https://www.lexology.com/library/detail.aspx?g=06e3b2e5-5295-489b-baec-43a621575a0d

 

Seemingly, so say legal bloggers Jeffrey Madrak and  Agatha H. Liu PhD for the IP law firm Hickman Becker Bingham Ledesma:

 

"Non-fungible tokens, or “NFTs” are taking the digital world by storm. Jack Dorsey, the founder of Twitter, recently sold an autographed tweet associated with an NFT for $2.9 million. Super Bowl champion Tom Brady just announced the launch of the NFT platform he has cofounded that will offer digital collectibles. Such popular use with highly appraised items begs the question – What actually is an NFT? And for those of us in the high-tech world, the further question – How do NFTs relate to intellectual property?"

 They go on to explain:

"An NFT is a digital version of a certificate of authenticity (a token), secured and embedded in a blockchain. When an NFT is created, digital information including the creator’s name and other programmatic details such as the creator’s blockchain wallet address are linked to an underlying asset and stored in a blockchain (while the underlying asset might not be stored in the blockchain). Because NFTs are secured by a blockchain, no one can modify the record of ownership or copy/paste a new NFT into existence."

For authors in particular, author Maggie Lynch has put up a comprehensive blog post on the topic, in which she lays out the pros and cons for adopting the technology.

https://povauthorservices.com/the-blockchain-nfts-cryptocurrency-and-author-opportunities/ 

Herewith, a quote of a small portion, with permission and attribution to Maggie Lynch and her blog.

"Here are some ideas of how an average author might consider creating NFTs. I’m sure there are many more I haven’t even considered yet.

• Digital 1st edition released in limited numbers prior to a book being released en masse to retailers
• A collectible version of a backlist book or a recent release that has different art or added art pertaining to the story
• A special edition boxset that is not offered in retail markets and won’t be offered in retail markets
• A bundled special edition that includes ebook, audiobook, and a shipped hardback book as a package
• A 1st edition Live Reading before the book is released widely, whether narrated by the author or a paid narrator
• Additional works of art based on your characters that are sold as separate digital art, playing cards, and/or provides information not in the books but germane to the story
• Tiers of special editions – Platinum tier: Only 25 copies are made of original offering which includes additional art, audiobook, and a special edition hardback delivered signed and numbered. Gold tier: 500 copies of special edition which includes everything but hardback. Silver tier: 1,000 copies of digital special edition which includes additional art.  After this, the book is released as a regular ebook, print, audio all separate without any special edition things to the wider marketplace.
• A digital object that helps your reader solve a puzzle inside the book.
• A digital object that allows your reader to select two or more alternative endings
• A way for the buyer to have a video call with you for a specified period of time or to book you for a limited part of friends (book group, family, etc.)
• You could use one or more of your NFTs as part of a contest or giveaway to create buzz and get people interested in the platform

All of these are additional opportunities for PR, promo, buzz, and have the potential to also influence regular retail sales of your book products. Doing NFTs is one more market for you. I would not leave the usual mass markets just to do NFTs. Instead I would add NFTs as another way to gain income, at least until it proves it is the only way that makes sense for you to market your books."

Legal blogger Sophie Goossens, representing Reed Smith LLP, (a British law blog) takes a dimmer view of NFTs when it comes to ownership of works of art in a blog titled "You Think You Own An NFT? Think Again." She is, of course, speaking to art connoisseurs.

https://viewpoints.reedsmith.com/post/102gu68/you-think-you-own-an-nft-think-again

"Can one own a physical a piece of art? Yes. What do you own: the 'tangible property' i.e. the canvas, the statue, the physical sheet of paper embodying the work. Do you own the intellectual property in a piece of art just because you hold the original or a limited edition of it? No, if you want to own the intellectual property in the artwork, it needs to be assigned to you from the creator, by contract."

Sophie Goossens asks and answers several more interesting questions about possession and ownership of art and digital art.

 

Last (but not least), Pramod Chintalapoodi of the Chip Law Group takes a look at the legal implications of NFTs, and warns:

"The NFT's usefulness when it comes to IP rights is currently limited, and even problematic. The dilemma here is that ownership of NFT does not translate into ownership of an original work. In other words, buying an NFT does not mean that one is buying the underlying IP rights in a given content. Section 106 of the US Copyright Act states that a copyright owner has exclusive rights in reproducing and preparing derivative works. They also have exclusive rights in distributing the copyrighted work. Buying a piece of art does not mean that the copyright to that artwork transfers to the buyer."

https://www.chiplawgroup.com/legal-implications-of-nfts/

The bottom line seems to be that NFTs may be good for thwarting pirates and exploiters, and are therefore good for creators of art and literature.... but, one has to be prepared to adopt Ethereum.

Coindesk has put up a How-To guide to entering the NFT market:
https://www.coindesk.com/how-to-create-buy-sell-nfts

All the best,

Rowena Cherry  

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

Very Fine Print - Just Because It Says It's A "Reminder" Doesn't Mean It's Not a Pitch

"IMPORTANT - OPEN IMMEDIATELY"

Unfortunately, the American 1st Amendment allows anyone to make the misleading claim that their written communication is "Important", and to demand (using the imperative mood) that the recipient of the missive is hasty in reviewing the material.

If you review this hastily, you might not notice that this "Reminder" comes from somewhere called "Bureau", rather than from the USPTO ... which is an Office. You might also not notice that this "reminder" gives your ten-year anniversary date as a whole year (or more) earlier than the renewal is actually due.

Signing and returning this document will not actually renew your trademark, it will empower the helpful Bureau to renew your trademark on your behalf. The large block of fine print most professionally and politely discloses to the target reader that the "Bureau" is a private business, and also that they are not endorsed by the US government.

Government websites are usually .gov

Like this one:  https://www.uspto.gov/trademarks-getting-started/caution-misleading-notices

The USPTO warns about a great many purveyors of perhaps premature and unnecessary reminder services

and their list should be a go-to for authors and trademark owners.

Fascinatingly, the sample envelope that the USPTO displays purports to come from New York, but was postmarked from Santa Clara. It is also always interesting when a business sends mail from a seemingly prestigious (Park Avenue?) address, but encourages respondents to mail to a PO Box in a different zip code.

Rent at 230 Park Avenue appears to be as low as $33.80 per day.  That is, per individual, and for a multi-month lease.

That reminds this author of the interesting details of the work experience of an author-client-funded publisher's London-office-based representative, by Henry Coburn

http://www.theindependentpublishingmagazine.com/2018/07/the-radiance-of-banality-predatory-publishers-in-the-uk-part-one-henry-coburn-guest-post.html

http://www.theindependentpublishingmagazine.com/2018/07/the-radiance-of-banality-predatory-publishers-in-the-uk-part-two-henry-coburn-guest-post.html
 

Other helpful sites for aspiring authors:

https://www.sfwa.org/other-resources/for-authors/writer-beware/

https://writersweekly.com/whispers-and-warnings/09-13-2018
 
https://blog.reedsy.com/scams-and-publishing-companies-to-avoid/

https://justpublishingadvice.com/new-authors-beware-of-scam-agents-and-publishing-sharks/


The above are also jolly reading for those who enjoy the occasional, regrettable bout of schadenfreude.

Please respect the copyrights of helpful (and of unhelpful) sites. That may go doubly so for our European readers, given the passage of  Article 11 and Article 13, despite the efforts of the highly alarmed folks at EFF and others.... much to the glee of musicians in particular, who may now look forward to being paid when their work is monetized by others without their permission or fairly negotiated compensation.

https://thetrichordist.com/2018/09/13/totally-pissed-off-by-big-tech-spam-eu-gives-artists-a-copyright-victory/

Article 11 is described as a "link tax", which may mean that content creators' publishers may demand payment when major platforms quote and link to copyrighted works such as stories. There are exceptions for small and micro platforms. With luck, individual bloggers are considered small, and perhaps "fair use" rules will continue to apply, although what is "fair" may in time be more narrowly interpreted (as reportage, parody, review, scholarship.)

Article 13 holds platforms responsible if the platforms permit or turn a blind eye when users upload and share unlicensed, copyrighted work, which might mean music, music videos, photographs.

All the best,
Rowena Cherry

Privacy In The Toilet

Imagine that you watch Next Generation Television on your mobile device, and it watches you back. Also you have some pre-installed software on your mobile device, which is easily hackable, but the reason for it is to target you for advertisements.

Now imagine that your device is "protected" by facial recognition. If a password is hacked, you can change a password. If your face is hacked, you cannot change your face.

Well... maybe you could, if you thought about it early enough.  That is, before you activated your device. It would mean that every time you wanted to use the device, you'd have to wear beauty patches, and you'd have to have the patches in the same spot, every time.

For a brief history of beauty patches:
https://www.stuffmomnevertoldyou.com/blogs/beauty-patches.htm

I imagine, someone will make a fortune taking a clear strip, like the backing of those things you peel, and slap onto wet skin to pull the blackheads out of your pores, and sticking an attractive pattern of black dots to it.  Give me credit, won't you?

Nowadays, too many people use tiny tattoos to cover small scars. The trouble is, if you look up tattoo ink, some of those inks are carcinogenic.

A futuristic language of  facial spots would be fun.

By lip; "I'm a kisser."
By eye; "I'm watching you."
Between brows; "Don't cross me."
Right of  forehead; "Originalist."
Left of  forehead; "Change the Constitution...."

Back to the toilet. You could be sitting there, engrossed in your streamed series, having lost all track of time, and place. Suddenly, you receive pop-up advertisements for constipation remedies, bowel blockage surgeons with expressions of deep concern on their faces,  perhaps some decorating tips for your bathroom.

Just like that young lady who took a selfie of herself in a restroom, with no regard to what was lurking behind her inside the toilet and plainly visible, the association once made might never go away. Your face might target you as interested in stool softener for the rest of your online life.

Here are my law blog inspirations:
"Moving Beyond Passwords" by Eric A. Packel of Baker Hostetler LLP

https://www.lexology.com/library/detail.aspx?g=da4bb36f-ca66-4b4e-aef4-c282288b2e2e

In this article on Facial Recognition, we are assured that the chances are one in a million that someone else would look so much like you that they could unlock your phone. There's a very intriguing suggestion that advertisers might be able to use facial mapping to gauge how interested you are in their advertisements.
I wonder what they'd do if you frowned at every offering. Maybe pitch wrinkle cream? Anger management courses?

Other Baker Hostelter LLP blogging lawyers S. Benjamin Barnes and Alan L. Friel write
"Deception and Unfair Practices Come Preinstalled"

https://www.lexology.com/library/detail.aspx?g=468588f4-94d7-4aec-a3c0-6555c201392c

They use an example of a person actually shopping for an owl shaped pendant, and being bombarded with    unsought advertisements for other owl shaped pendants. They also reveal by how much these pop-up advertisements reduce internet speed for the unfortunate device user by 25% if they are trying to download something, and by 125% if they are trying to upload something.

The bottom line might be, if you are interested in the internet of things, and are linking your devices, you really do need to read every word of the TOS and TOU before clicking "I AGREE".

For Kelley Drye and Warren LLP, legal bloggers John J. Heitmann, Jennifer Rodden Wainwright, and Alysa
Zeltzer Hutnik write "Will Your TV Watch You? FCC Green Lights Targeted Advertising In Next Gen TV Broadcasting Standard."

https://www.lexology.com/library/detail.aspx?g=a587f62a-79e4-426b-a928-05ff73efee46

Interestingly, the FCC did not find the privacy concerns to be persuasive.

I keep an address label stuck over the eye of the camera on my Air Mac. How about you? And I don't stream anything at all in the bathroom.( I do Sudoku.)

All the best,
Rowena Cherry