A Bored Ape Lawsuit Won’t Set the NFT Precedent Seth Green Wants

The first thing you should probably do if you find yourself in Seth Green’s position ain’t Tweeter how you “look forward to precedent-setting debates on the ownership and exploitation of intellectual property”.

Green, an actor best known for his sulky portrayal of the disappointing son of archvillain Dr. Evil in the Austin Powers franchise, has become the butt of the latest bad crypto joke. Earlier this month, Green lost his prized Bored Ape when he fell for a scam and made himself vulnerable to thieves by interacting with a clone of another NFT project’s website. Clone sites can be virtually indistinguishable from the originals, often with just a letter or two missing from their domain names. Green isn’t the first to lose an NFT this way, and he won’t be the last. Old fashioned hacking and scamming are rampant in the magical world of Gutter Cats and Happy Hippos.

What makes Green unique is that he had a lot more ride on his Ape than most Yacht Club members. Unlike many NFTs, Bored Apes comes with a license to make personal or commercial use of your new primate pal. When you buy a monkey, you have the right to reproduce its image and create derivative works. Green had planned to do just that. For months, he has been developing a series called White Horse Tavernwhich combines live action and animation and stars a monkey with a halo and endearing intimacy issues as the titular bartender of the watering hole.

But with the star missing, the show probably can’t go on. According to the terms and conditions of the Bored Ape Yacht Club (BAYC), the right to exploit the image of an ape follows the NFT. After a BuzzFeed article got the internet talking about how White Horse Tavern is now doomed, Green tweeted in response, “That is not true since the art was stolen. A buyer who has purchased stolen art with real money and refuses to return it is not legally permitted to exploit the use underlying intellectual property.

Incorrect. This latest Ape case illustrates the limits of the free and frictionless world promised by crypto and its many misunderstandings around ownership.

Green’s claim about stolen art would be true if the stolen artwork in question was, say, Jeff Koons. Rabbit. Whether a buyer purchased the stolen sculpture with “real” or unreal money, Koons would still have the exclusive right to, God forbid, make a romantic comedy-drama featuring the quicksilver creature. The default – which applies to both traditional art and crypto art – is that the author owns the copyright regardless of what happens to the artwork. But by tying the rights to the NFT, the monkey licensing system makes them different animals.

It’s not that anyone who steals simians has carte blanche to start their own BAYC restaurant. If Green’s Ape was still in the thief’s wallet, Green would still be legally considered the “true owner”, with his right to exploit the underlying intellectual property remaining intact. Unfortunately for Green, the Ape was quickly returned to a user known as DarkWing84 for $200,000 and the law protects buyers who inadvertently pay out for fraudulently purchased goods. Assuming DarkWing84 wasn’t in on it, they now own the monkey and the right to star him in a TV show about life and love in the big city. While the monkeys went into six figures, $200,000 probably wasn’t a low enough price to warn someone that this particular monkey had a sordid past.

Because there is so little law on the books about NFTs and the transfer of intellectual property rights via smart contract, it is true that a lawsuit against Green’s Ape could set a significant precedent. But it wouldn’t be the kind Green seems to be expecting. If DarkWing84 took Green to court to stop him from moving forward with White Horse Tavern, they would probably prevail. Green’s only real hope is to avoid all litigation and settle this quietly. Announcing to the world that it was stolen and bragging about having made legal history makes such a possibility increasingly remote. Next time you think you have the lawsuit of the century in your hands, talk to your lawyer. before you talk to Twitter.

Green’s outspokenness also makes him a very visible target for future scams. Last week at NFT VeeCon, Green said he found it “encouraging” to see “how many people have approached me and said, ‘We have to do something about this,'” when he made the theft public. Chances are that many of these worried souls are fraudsters themselves. Once the cryptoverse knows you’ve been tricked once, you’re likely to be besieged by bad actors hoping they can trick you twice, offering to help you get your NFT back for a fee.

While the possibilities of crypto art continue to inspire artists working in a range of media, attaching rights with off-chain value to on-chain assets continues to be a risky proposition.

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