In our last post we considered the ongoing case of Amir Soleymani vs Nifty Gateway and the contractual risks around NFT terms of sale. Below, we consider the ongoing copyright challenge of Anish Kapoor and Others vs the curator Ben Moore, and the potential dangers/grey areas around minting copyright works as NFTs by someone who is not the owner.
Anish Kapoor and Others vs Ben Moore
In 2013, curator Ben Moore worked with artists Anish Kapoor, Damien Hirst and David Bailey (among several hundred others) for a charity project called ‘Art Wars’. Described as an “ongoing exhibition” the show features life-sized Stormtrooper helmets that have been “transformed into highly collectable pieces of art by some of the world’s leading artists”.
In November 2021, Moore photographed a selection of the helmets, minted the photographs as NFTs and listed these for sale on the trading platform OpenSea. Within 24 hours of the listing,
an excess of 1,600 Ethereum (approximately GBP 5 million) had been transferred. OpenSea said it had received a copyright infringement notice and complied with it, removing the Art Wars page on its platform. 12 of the featured artists are taking legal action against Moore.
A representative for Bailey stated that Bailey had not given permission or received any proceeds of the NFT sales (reported here.) The artists claim that Moore does not a) own the original works of art, or b) have the licence to create NFTs or other derivatives from them. It is also claimed that aside from a newsletter notifying artists of the project, Moore made no attempt to seek permission from the artists for the NFT project. A statement from Moore reads, “[Art Wars] regrets that some of the artists were taken by surprise, and have since expressed a preference not to be included. Of course, we’ve respected those wishes. Any artists remaining in the project would “receive royalties in the usual way”.
Why does this matter:
As highlighted in this dispute, the minting and sale of NFTs are susceptible to 'copyfraud' and infringement of copyright in the underlying work as well as the infringement of the moral rights of the author of the original work. The dispute highlights the issues around ownership of underlying assets attached to NFTs. Both tangible and digital works minted as NFTs (without the artists’ consent) have been the subject of legal challenges in recent months, and this is another example of tokensing works without the Arists’ permission (we touched on this in an earlier post here). There have been several similar cases in the US - including the sale of a Basquiat NFT, ‘Free Comb with a Pagoda’ which was subsequently withdrawn when the artist’s estate made it clear that the owner did not possess the copyright and IP rights being offered for sale with the work. London-based artist Helen Downie (known as Unskilled Worker) discovered via Twitter that her work was being used in the Art Wars NFT collection. Speaking to the Art Newspaper, Downie stated “It’s really important to take action…if exploiting an artist's IP goes unchallenged, this behaviour will ruin and corrupt what is a truly exciting space for artists and collectors alike”.
Whilst this is the first case involving a group of high-profile artists, it is unlikely to be the last legal challenge we see over alleged copyright ownership disputes and copyright infringement and NFTs.
Co-authored with Lauren Neal.
Star Wars Stormtrooper helmets by artists including Sir Anish Kapoor and David Bailey have been photographed and turned into non-fungible tokens and marketed for millions of pounds without their consent.