Seth Green’s Bored Ape has been kidnapped.
Bored Ape Yacht Club non-fungible tokens (NFTs) have become a celebrity status symbol, with buyers of NFTs of cartoon primate images created by Yuga Labs reportedly including Eminem, Stephen Curry, and Paris Hilton, as well as corporate buyers like adidas and Arizona Iced Tea. Justin Bieber apparently paid $1.29 million for his Bored Ape NFT.
NFT contracts and IP rights
When NFTs are transmitted, NFT sellers can include a licensed bundle of rights for uses beyond the specific electronic image, such as the right to print t-shirts, prints and other items. Many NFT sellers restrict these types of downstream use. For example, the high-end NFT project CryptoPunks—which features 10,000 unique, algorithm-generated characters, a collection of which was sold through Christie’s in 2021 for $16.9 million—does not allow buyers to create other works using the images in its NFTs and claims to own copyright protection in all of its images.
On the other hand, the Bored Ape NFT smart contract provides buyers with a license to create content, i.e., new works based on their specific Bored Ape image. However, that right is only for the holder of the NFT.
The great Bored Ape heist
Which brings us back to Seth Green. Green reportedly intended to create a hybrid live-action/animated comedy series featuring the Bored Ape character from the NFT he purchased for around $200,000. Unfortunately for Green, he lost this NFT and 3 other Bored Ape NFTs in a phishing scheme, which has forced the production on his show to halt.
Because the Bored Ape NFT contract gives the holder of the NFT the right to make other creative works using the character, the question is now whether the new owner—who has been identified only as @DarkWave84 and has claimed he legitimately purchased the Bored Ape NFT in question from the scammer in good faith—might have a copyright infringement claim against Green if the show goes forward.
All of this brings up tricky questions about what an NFT “owner” actually owns, the extent to which the creator can restrict later use, and how copyright law formed in the terrestrial world and previously interpreted in other iterations of the digital world will apply to NFTs. That’s a tall order for a Bored Ape.