Are CryptoPunks Copyrightable?

Abstract

tl;dr: It’s unclear, and that might be a problem for Larva Labs, but might also be an opportunity.

Larva Labs’s CryptoPunks NFTs are iconic. Created in 2017, they were among the first NFTs on the Ethereum blockchain. Four years later, they are among the most valuable, selling for anywhere from $200,000 to millions of dollars.

The CryptoPunks collection consists of 10,000 NFTs, each of which is associated with a unique CryptoPunks image. Everyone knows who owns each CryptoPunks NFT. The Ethereum blockchain provides indelible proof. But people disagree about who owns - and who should own - the copyright in the CryptoPunks images. Most CryptoPunks NFT owners believe they should own the copyright in the image associated with their NFT, or at least have the right to use it. Larva Labs believes it owns the copyright in all of the images, and entered a licensing deal with United Talent Agency based on its ownership of the CryptoPunks brand and copyrights.

Color me skeptical. I’m not sure anyone owns the copyright in the CryptoPunks images, because I’m not sure they’re copyrightable in the first place. And I suspect Larva Labs is also worried about the copyrightability of the CryptoPunks images. After all, they complain about copyright infringement, but don’t file infringement actions.

In this essay, I explain how copyright works, what it protects, and why. I analyze the copyrightability of the CryptoPunks images. And I reflect on what it means for the CryptoPhunks and V1 Punks NFTs, as well as the NFT market in general.

Keywords: cryptopunks, nfts, copyright, trolling