On August 1st, XCOPY announced that he was going “all in” on Creative Commons (CCo) licensing, and would soon waive his copyright interest on all of his existing solo artworks.

if it wasn't already, @XCOPYART turning this piece into CC0 will make it one of the most iconic NFTs,

ever,

probably for eternity

that's the power of CC0

epic acquisition by @CozomoMedici https://t.co/TPW5HZRyq1

— DCinvestor.eth ⌐◨-◨ (@iamDCinvestor) January 22, 2022

A few days later, Kevin Rose announced that the popular PFP project Moonbirds would be moving to the CC0 public license as well, in an effort to “honor and respect the values of the internet and web3” and to start “a new and important phase of the project.” While many artists jumped at the chance to incorporate their favorite NFTs into their work, plenty of Moonbirds holders were outraged. They originally purchased their tokens with the belief that they were the sole proprietors of the NFTs and their likenesses, and were now forced to share them with the whole world.

In the weeks that followed, similarly licensed artworks like tjo’s “BLeU” and Grant Yun’s “gn” were remixed, reminted, and reborn in a community-driven art project that took crypto Twitter by storm. But can a blockchain-native art world, where provenance and royalties are the industry standard, bear the brunt of such a radical left turn in ethos? And even if so, is there not a better, blockchain-based solution in our near future?

Since the invention of the printing press, copyright has been playing catch up. With the advent of the internet – and the sea of remixes and “right click + saves” that followed – the problem has grown exponentially.

Despite the internet’s growing impact, in 1998, the United States’ increasingly antiquated approach to copyright enforcement turned downright draconian. The problem was Mickey Mouse. At risk of losing their beloved rodent to public domain, Disney successfully lobbied for enactment of the Sonny Bono Copyright Term Extension Act (CTEA), which extended copyright protection for individuals to the life of the creator plus 70 years.

Stanford law professor Lawrence Lessig saw CTEA as unconstitutional. In partnership with a coalition of academics, he founded the Creative Commons nonprofit that published the set of free, public, Creative Commons licenses now fast adapted by artists in the crypto space.

These licenses allow creators to retain copyrights while sharing their works on more flexible terms than the default “all rights reserved.” In turn, they seem like a great fit for blockchain-empowered digital ownership, which holds decentralization and sovereignty close to its heart. In fact, so much of crypto culture proliferates through retweets and memes that it seems almost natural for transformative work to find its place in the early evolution of cryptoart. Plus, isn’t shaking things up another part of the crypto ethos?

“Giving the intellectual rights from your art is drastic but, if people are using your art in their own projects, it will be seen. And believe me, visibility today is worth a pot of gold (or ETH, you decide),” artist Acid Boy told SuperRare Magazine a few days after minting his own interpretation of “BLeU.” 

“Artists grabbed the concept and used the blue background in their art and minted it. As an artist, it opens doors of creativity and challenges. Here, the piece of art was not only seen, but used by others.” While the idea of trading copyright for exposure might make some of us cringe, the response to the “BLeU” craze resulted in an explosion of views, and a huge sale of the original.

When asked how they felt about seeing their work in so many renditions, tjo told us, “I think it’s great. And I think it’s not crypto native of itself but crypto gives it sense, in the way that before NFTs there was hardly any way to claim ownership of anything else than the rights, when now you have tangible digital ownership and usage can give value to the original, as it is traceable and tangible in a sense.”

In contrast, Bryan Brinkman, who added a couple of his Tweets to Grant Yun’s “gn” in early August, told us that “personally, I think CC0 is a tool that allows for mass marketing and derivatives, but I worry it gives away too much ownership from artists. To me, it is the antithesis of why most joined the web3 space.”

Utilizing #CC0 to put my worst tweets into the most popular cryptoart 🤌 https://t.co/aQpsa9TajM pic.twitter.com/GksbYIXnEs

— Bryan Brinkman (@bryanbrinkman) August 7, 2022

According to Brinkman, it favors artists who have already proven their value and have a fanbase that will utilize it, which means it might not necessarily pan out for new artists on the scene. “I think it falls into the decentralization ethos, but I don’t believe it represents the artistic ethos of the space, which to me was about empowering creatives and giving us control of our work long term.” 

The standard of keeping code open-source is slowly disseminating into the smart contracts that govern the cryptoart world, leaving many questions and concerns in its wake. For instance, which artists are best equipped to take this risk, which projects will benefit most from the freedom, and what, if any, will be the consequences long term? 

“While I think it’s a fun tool for specific works, such as Tjo’s ‘Bleu’ or XCOPY’s ‘Right Click Save,’ I do not recommend artists use it as a blanket release on their entire body of work and style,” Brinkman added. “I think artists need to build their own licenses they feel comfortable with, and not race to the CC0 extremes.”

Further, since Creative Commons was envisioned in a pre-blockchain world, some see it as a Web2 approach at risk of muddying a forthcoming Web3 solution. 

“Creative Commons embraced the decentralized nature of the Internet by enabling relatively unrestricted sharing and use of copyrighted content, but was somewhat of a concession to the fact that it was practically impossible to effectively monitor more restrictive copyright licenses online,” said Emilio Cazares, SuperRare Labs’s Legal Innovation Counsel. “Creators understood that it made a lot more sense for their reputation and creative craft to have an open approach to copyright to maximize engagement, rather than try to wedge themselves in as remote enforcers of complicated  licensing arrangements.”

As Cazares and others see it, blockchain could enable a more sophisticated, trustless solution. It’s not hard to envision a framework where open source licenses could be codified into smart contracts that mint NFTs granting nuanced licensing rights. Through contract protocols, artists could then license artworks for reuse in exchange for the cost of the licensing token, or, perhaps, 5% of any derivative works’ future royalties, depending on how the contract is written. An edition of licensable tokens for an artwork could then go through its own process of price discovery, bought and sold on the network.

“I have been arguing that copyright transactions through NFTs are the most exciting  and ripe use case for blockchain,” Cazares said, “because the use of the content is already constrained to a technological environment.”

Of course, implementation of “protocol-enabled licensing” could very well prove technically challenging, costly, and time consuming. Creative Commons provides an immediate solution with conceptual force. But for some artists that take the CCo path, abandoning future commercialization rights might prove regrettable if a protocol-based solution emerges. One thing’s for sure: Once the CCo door opens, it is very hard to close. 

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The information provided in this Article does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available in this Article are for general informational purposes only. Please seek help from a qualified legal professional if you have any legal questions about copyright considerations for NFTs or Creative Commons licenses.