Pulp Fiction NFT Lawsuit Tests Dated Copyright Law
At the 94th Academy Awards held on March 27, 2022, a special segment was devoted to honoring the 28th anniversary of Quentin Tarantino’s masterpiece film Pulp Fiction, one of Hollywood’s most enduring films of all time.[1] Film critic Anne Thompson, who was lucky enough to attend its first screening, has been quoted saying that the initial applause was “electric.”[2] Ultimately grossing over 213 million dollars, Pulp Fiction achieved worldwide acclaim.[3] Its plot twists and turns, and its nonlinear structure, were revolutionary to many viewers.[4] Considering the film’s cult-like following, it is not surprising that Tarantino fans jumped on the news that Tarantino was launching a collection of NFTs containing exclusive elements of his original Pulp Fiction script. With a price tag exceeding $1 million, “The Tarantino NFT Collection,” is one of the first of its kind to include “Secret NFTs” linked to original, iconic scenes and personalized audio.[5]
What is an NFT?
A non-fungible token, or NFT, is a cryptographic asset bought and sold online on a blockchain that contains a unique identification code and metadata that make it distinguishable.[6] In the digital age, NFTs are “minted,” or published on the blockchain, documenting ownership of the digital asset and providing a unique certificate of authenticity on the blockchain.[7] When a buyer purchases an NFT, she receives the NFT in her digital wallet, enabling her to prove ownership. With the birth of NFTs, creators have a new mechanism for retaining the rights in their works and sharing them with the rest of the world.[8]
Background
In November 2021, Tarantino first announced that he was launching an NFT collection comprised of original, previously unpublished excerpts of his handwritten Pulp Fiction script, and fans were over the moon.[9] Within days, Miramax sued claiming that Tarantino does not own the copyright and trademark rights for the film, and that its agreement with Tarantino did not grant him a license for the sale of NFTs.[10] According to the Miramax lawsuit, under their “Original Rights Agreement” Tarantino granted to Miramax “all rights (including all copyrights and trademarks) in and to the Film” … “excluding only a limited set of ‘Reserved Rights’” which included “screenplay publication.”[11] Miramax contends that these reserved rights “do not encompass any rights or media that were not known at the time of the Original Rights Agreement” – including minting NFTs.[12]
Tarantino plans to create a high-resolution scanned image of each chapter of his original handwritten script and then sell a single copy of each chapter as an NFT. A key issue in the dispute with Miramax is whether a scanned image of the original script and sold as an NFT constitutes a “publication.”[13] Tarantino’s contract with Miramax contained reserved rights which include the soundtrack album, music publishing, live performance, print publication, interactive media, theatrical and television sequel and remake rights, and television series and spinoff rights.[14] Tarantino argues that the sale of a unique, scanned screenplay excerpt falls within his “screenplay publication” rights reserved for him in his contract, while Miramax alleges that it does not.[15]
Who Has the Winning Argument?
Existing copyright law is not designed to regulate digital assets like NFTs. Typically, absent a license, only the copyright owner has the right to use the work to create an NFT.[16] So who is the true owner of this work? Who should be allowed to transform the original script into a digital asset, visible only to a unique owner? To answer these questions, the court will consider the meaning of “publication” under 17 U.S.C. § 101.[17] If the court finds the NFT to be a derivative work or a work outside the scope of the “Reserved Rights”, Tarantino does not have the right to sell these NFTs. But if it finds the NFT to be a “screenplay publication, or if the court rules that the “Reserved Rights” Tarantino kept in his Miramax contract are broad and may encompass NFT creation, Tarantino will have a winning claim.[18] This issue is a new one for the court, and it will be interesting to see how the lawsuit unravels.[19]
NFTs and Future Copyright Law Issues
In the innovative NFT domain, this is only the beginning of IP related questions the courts will soon confront. Creators are inspired to take on new opportunities and collaborations connected to NFTs. Snoop-dog stepped into the NFT space and then released old music associated with NFTs, and most recently, Kevin Smith, the Chasing Amy filmmaker, just announced that he too is tapping into the Secret Network and releasing his movie Killroy Was Here as an NFT.[20] Only a select few viewers will be able to access his film.[21] It will be exciting and important for copyright and other lawyers and scholars to follow this new technology and consider the ways it will implicate intellectual property law.
Footnotes
