Wednesday, January 19, 2022
Quentin Tarantino gets sued, demonstrating that NFTs are about contracts after all
I’m excited to teach copyright this semester and while I miss teaching contracts, there is a lot of synergy between the two subjects. So, I was interested to read that the director Quentin Tarantino is being sued by Miramax in an action claiming copyright infringement and breach of contract. The lawsuit involves Tarantino’s efforts to auction pages of the script from Pulp Fiction as non-fungible tokens or NFTs.
(Readers of this blog are of course familiar with NFTs, thanks to Juliet Moringiello and Christopher Odinet’s article and Jeremy Telman’s blog post on it here).
The issue is whether Tarantino owns the rights to the NFTs. That will depend on the contract between Tarantino and Miramax and whether the language the parties used was broad enough to capture this type of technology – technology that wasn’t contemplated at the time the parties entered into their agreement.
I must be missing something here. AFAICT, the NFTs will essentially consist of (1) screenplay snippets and (2) some commentary about (1) by Tarantino. Shouldn't those be squarely covered by his Reserved Rights, which not only include "screenplay publication" and "'making of' books" but also permit those to be produced "in audio and electronic formats"? The last part—"electronic formats"—seems to coincide particularly well with NFTs.
With respect, I also have to disagree that NFTs are a new "type of technology"—they aren't. One piece of an NFT is just the data like digital images, audio, or video. That's not new, and in any case, data isn't "technology"—it's information.
Moreover, an image or audio doesn't change just because it's packaged as an NFT. So the NFT packaging in this case is pretty much tangential to the copyright infringement/breach of contract analysis. If something doesn't infringe/breach standing alone with no NFT packaging, then it won't infringe/breach in packaged form either.
In light of the above, and putting aside other issues like trademark, I'm confused as to why Miramax is pushing the dispute this far. They don't seem to be on very firm ground when it comes to the infringement/breach claims. You can sort of tell from looking at the actual counts at the end of the complaint. While they of course incorporate by reference all the factual allegations, the counts themselves are quite vague and fail to spell out what exact conduct Miramax alleges is breaching the contract and/or infringing the copyrights.
(Although not strictly relevant to this legal discussion, the other piece of an NFT—the blockchain aspect—isn't really a "technology" either, at least not in a traditional sense. It's an abstract system for structuring data that exists apart from any particular technical implementation. And the hardware used to implement it these days is off-the-shelf gear that's been around for quite some time. To be sure, I'm not criticizing the concept of a blockchain or denying that developing it called for creativity; I'm just disputing that it belongs in the "technology" category.)
Posted by: kotodama | Jan 19, 2022 8:47:09 PM