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When an NFT is resold, the seller is not protected by the first sale doctrine. The right to sell or distribute the digital version, whether a scan or a photograph of the copyrighted work, belongs exclusively the copyright owner. In these cases, the outcome will likely be the same. In cases where an NFT is tied to a physical object, rather than a digital object, a digital version of the physical object is linked.
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Redbox Automated Retail LLC, the court held that the first sale doctrine did not apply to digital download codes because the sale of the codes essentially sold “an option to create a physical copy at some point in the future,” not a “particular, fixed copy of a copyrighted work.” Some courts have analyzed the question of whether the first sale doctrine applies to this function. An NFT effectively acts as an option to create a copy. However, when purchasing an NFT, the buyer often acquires a link to access a copy of the digital work.
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Īn NFT is non-fungible and represents a unique copy of a work, as opposed to a license to access the work. The court stated that the first sale doctrine does not apply because the resale would require making an unauthorized copy of the digital music file, which would infringe upon the copyright owner’s reproduction right. The Second Circuit ruled in favor of Capital Records. Capitol Records sued ReDiji alleging that the program violated Capitol Record’s reproduction rights. Once sold, the seller would no longer have access to the file. created a website that allows users to resell their digital music files to other users after ensuring that the music files had been lawfully purchased by the seller. The first sale doctrine applies only to particular copies, and because the transfer of digital works requires a copy to be made, the sale of digital work acts more like a license to access the work.
On the other hand, the first sale doctrine historically has not applied to digital works.
The first sale doctrine is the principle that allows used book stores to exist. For example, a purchaser of a physical oil painting would be able to resell the painting without the permission of the copyright owner. The first sale doctrine is a longstanding principle of copyright law that allows the owner of a copyrighted work to sell, distribute, or transfer the work. As a result, the applicability of the first sale doctrine is an essential element to the vitality of the NFT industry.
The value in an NFT lies in its ability to be resold. Unless the sales agreement specifies otherwise, the buyer does not acquire any copyright in the digital work nor ownership of the work itself. In purchasing an NFT, the buyer acquires a link to access a file that contains the digital work that the NFT represents, or a digital version of the physical object.
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This is done through the means of a “smart contract,” a method of sending a portion of the resale proceeds to the original creator that is built into the code on the blockchain. įurther, when artists sell an NFT of their work, a typical sales agreement would include a mechanism that allows each artist to receive royalties not only on the original sale but also on secondary resales. Since digital files can be easily duplicated, NFTs create value for digital artists who otherwise would have difficulty profiting on their work. It is a digital certificate of ownership that is secured on the blockchain, effectively creating a traceable record of every time the NFT changes hands.
An NFT is a non-fungible token that represents a particular copy of digital work.
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