Introduction
Copyright is the law of art. As the premier marketplace for digital NFTs, the Zeromint community benefits from protecting the legal interests of all creators. This means ensuring that Creators understand that only authorized and original content may be minted and listed for sale on the Zeromint marketplace. By respecting the rights of all Creators, Zeromint Creators help ensure market confidence in the rarity and value of each Zeromint Creation to the growing network of digital creation collectors. These Community Copyright Guidelines and Policies provide an overview of acceptable marketplace minting conduct, a primer on some aspects of copyright law, and explain some of the unique copyright-related questions presented by NFTs and blockchain technology.
These Guidelines and Policies are not legal advice and should not be relied on as such. Reliance on this guide does not form an attorney-client relationship. Copyright law varies depending on the jurisdiction, but these Guidelines and Policies primarily characterize and rely on United States law unless stated otherwise. There is no guarantee as to the accuracy of the information herein. If you have a legal question about your rights as a Creator or Collector, especially a right concerning your right to mint Creations, a “fair use defense,” or a claim of copyright infringement, you should contact an attorney and not any members of the Zeromint team. For more information on copyright law, you can visit the website of the U.S. Copyright Office or the World Intellectual Property Organization (WIPO).
What is a “Copyright”?
A copyright is a legal right granted to creators, authors, and artists for “original works of authorship.” In general, copyrights can be obtained in all sorts of creations, such as paintings, drawings, sculptures, poems, lyrics, musical compositions, sound recordings, audiovisual works and – you guessed it – digital creations. Copyright protection allows creators to market, exploit, and protect their creative efforts. A copyright owner has the right to prevent the unauthorized reproduction, display, distribution, and performance of original works of art. On the flip side, only the copyright owner can authorize such uses.
Obtaining Copyright Protection
Copyright registration is not necessarily required to obtain legal protection for digital work. Like magic out of thin air, copyright protection begins once the work is created. All that is required is that the work be “fixed” in some tangible medium to qualify for copyright protection. Generally, if you create an original digital creation you have a copyright from the moment of creation so long as it is stored in some file format. Thus, you have the right to prevent the unauthorized use of your creation the moment it is complete.
Benefits of Copyright Protection
Although official copyright registration is not always required for legal protection, registering with your country’s copyright registration office may have very important benefits and can add value to your creative portfolio. For example, copyright registration is required before an infringement suit may be filed in federal court in the United States. Further, actual copyright registration opens up the door for statutory damages and attorneys’ fees if litigating an infringement lawsuit in the United States. For more information on copyright registration, visit the U.S. Copyright Office.
Copyright Ownership
Copyright ownership in a work vests initially in the author or authors of the work. Absent an obligation to assign, convey, or transfer the copyright to someone else (i.e., a “work for hire” as discussed below), the Creator(s) enjoy sole copyright ownership for original digital creations.
Joint Works
When two or more authors create a single work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole (i.e., digital art with audio elements), co-authors are considered joint authors and have an indivisible and equal interest in the work as a whole. Thus, true joint authors by default are equally entitled to sales and royalties, unless the joint authors agree otherwise. Currently, Zeromint does not facilitate the joint-minting of digital creations and expects its Creators to work with each other in sharing profits received from jointly created works. Zeromint is working on ways to increase the flexibility and modularity of its market mechanics and aims to support these types of features in the future.
Works Made for Hire
Certain types of specifically commissioned works, or so-called “works made for hire,” are an exception to the general rule that the individual or individuals that create the work is the legal creator of the work. If a work was commissioned through a written agreement or made during the scope of an individual’s employment, the party that hired the individudal may be considered both the author and the copyright owner of the work. Thus, an individudal could be in violation of an obligation owed to another by minting artworks legally considered “works made for hire.” Whether a work is considered a “work made for hire” depends on the facts and circumstances. If you plan on minting a work that was specifically commissioned by a written agreement or created during the scope of your employment, you should first determine whether that work is “work made for hire” and consider speaking to an attorney before minting.
Are Commissioned Works “Works Made for Hire”?
Not necessarily, but the rules may vary based on the jurisdiction. In the United States artwork specially ordered or commissioned for use as a contribution to a collective work or as a part of a motion picture (or other audiovisual work) may be considered a “work made for hire” if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. Whether or not a work is legally a “work made for hire,” you may have assigned copyrights to the person who commissioned the work if you signed an agreement specifically stating so. Always be on the lookout for copyright-related terms whenever you are creating works for others and be sure that you are only minting works that you own the copyrights to. To learn more about “works made for hire,” visit the https://www.copyright.gov/circs/circ30.pdf.
NFT Ownership ≠ Copyright Ownership
Ownership of a copyright is separate and distinct from ownership of any material object (i.e., a painting) or digital asset (i.e., a non-fungible token or “NFT”) in which the work is embodied or embedded. According to our Terms of Service, Creators do not lose copyright protection over works when they are sold on the Zeromint marketplace, unless the parties expressly agree in writing to convey a copyright interest as part of the transfer. As further explained in our Terms of Service, Collectors only have a property interest in lawfully purchased NFTs , but they do not have a copyright interest in the underlying artworks. The Creator reserves all exclusive copyrights to the underlying copyrights.
Can Creators Make Commercial Use of Zeromint Creations After They Sell?
As the copyright owners for the works they create, Zeromint Creators have the exclusive right to make commercial use of their creations (and all other exclusive rights under copyright law) even after being sold on the Zeromint marketplace. This means, that Creators are generally free to market, print, reproduce, perform, and license works underlying minted NFTs. However, and as explained further below, Creators are not permitted to sell other digital works or NFTs if an identical work is sold or listed for sale on the Zeromint marketplace.
The Collector’s Limited Rights to Zeromint Creations
Collectors have the exclusive right to sell, trade, or transfer their Zeromint Creation, but Collectors may not make “commercial use” of the underlying work. For example, Collectors may not sell copies of the work, mint additional NFTs based on the work, sell access to the work, sell derivative works embodying the work, or otherwise commercially exploit the work. As detailed further in our Terms of Service, Collectors receive a limited license only to display works underlying Zeromint Creations legally owned and properly obtained.
Creators Can Only Mint Original, Authorized, and Non-Infringing Works
Zeromint can only maintain its standing as the premier platform for _________ if Collectors continue to have high confidence in the integrity of the marketplace. Collectors can be confident that every item on the Zeromint marketplace is an original and lawfully minted creation that does not infringe on the intellectual property rights of others. As a Creator, you can improve on your own reputation and add value to the Zeromint community by following these guidelines:
Creators Are Responsible for Determining That Their Works Do Not Infringe
All Creators should monitor their own creations for infringing content before minting to ensure the integrity of marketplace and to protect their own reputation. Our Terms of Service expressly require Creators to represent that their works contain no infringing or unauthorized material. Zeromint has no power to prevent an infringing work from being minted, but does have the power to take down infringing works, revoke minting privileges, or otherwise restrict use of the Zeromint platform for posting infringing content or violating these Guidelines, whether or not a “fair use” exception may apply. More details about rules for minting works on the Zeromint platform can be found in our Terms of Service.
Creators Must Refrain from Minting Unoriginal or Unauthorized Content Unless a Credible Fair Use Exception Applies
Determining whether it is acceptable to mint unoriginal content is a difficult, if not an amorphous and subjective judgment call. Indeed, many celebrated contemporary and pop art forms that embrace the practice of reappropriating unoriginal content are often met with much controversy, especially when the “fair use” work sells at astronomical prices with no financial or reputational credit given to appropriated artists. Although the digital creation world is relatively new, and standards for fairly rewarding all contributors are still under development, it’s clear that the crypto art movement, as an example, has continued the practice of reappropriating unoriginal content, often with a symbolic, transformative, or meme-worthy purpose. Creators should never mint a work containing copyrightable elements of another’s work unless they are authorized by the copyright owner or a valid fair use defense applies.
Understanding “Fair Use”
The “fair use” defense is typically asserted as a defense to a copyright infringement claim and it works exactly like it sounds – the “use” of another’s copyrighted content ought to be “fair” if it is going to be tolerated. Creators appropriating unoriginal works should have a strong artistic basis, rationale, or purpose for exploiting the former work, and should not be motivated solely by passing off the work as their own or undercutting the original creator’s ability to market his or her own work. “Fair use” can be thought of as an embodiment of freedom of speech in the art domain. Even though the rights of copyright holders should be respected, some copying and appropriating should be tolerated to facilitate a free and open exchange of ideas, concepts, and artistic statements. Although the standard for “fair use” varies around the world, Creators should consider the tests and examples below before minting works containing unoriginal appropriated content. When considering whether a “fair use” applies to your use of another’s content, United States courts will often strongly consider:
Creators Must Determine at Their Own Risk Whether Their Works Qualify as “Fair Use”
Creators are solely (or with the help of their attorney) responsible for ensuring that the content they mint does not infringe the rights of others. Indeed, our Terms of Service and minting procedure require the Creator to represent that their works are in fact original creations. Whether or not a Creator believes that his or her work qualifies as “fair use,” they may still be held liable for infringement if an aggrieved copyright or trademark owner decides to institute a legal action.
Zeromint Does Not Make “Fair Use” Judgements for Creators
We want and expect all of our Creator’s to post non-infringing and original content, but we recognize that Creators need to borrow and build upon other works from time to time to fulfill their artistic message and style. However, Zeromint will not make value judgments about the merit of particular pieces or the credibility of a “fair use” argument if a work is allegedly infringing, as it is almost certainly impossible for Zeromint to do.
Creators Agree Not to Mint Multiple NFTs for the Same Underlying Work
NFTs have created an entirely new asset class for digital creations and collectibles, but much of the value derived from digital work depends on the proven rarity of the NFT. Zeromint items are intended to be unique, meaning that there should only ever be one digital token or asset for a given creation. Blockchain makes it possible to verifiably prove the provenance and authenticity of digital works like never before, but there are currently no deployed technological mechanisms or standards to prevent Creators from minting identical NFTs and selling them without the original creator’s knowledge. In order to ensure the rarity of each Zeromint Creation, our Terms of Service provide that minting a work on the Platform constitutes an express representation, warranty, and covenant that the Creator has not, will not, and will not cause another to mint, tokenize, sell, or offer for sale another digital collectible, asset, or product for the same underlying work.
Copyright Infringement Complaints Under the Digital Millennium Copyright Act
Zeromint respects the intellectual property rights of others. It is our policy to respond promptly any claim that content posted on the site infringes the copyright or other intellectual property rights of any person. Zeromint will use reasonable efforts to investigate notices of alleged infringement and will take appropriate action under the Digital Millennium Copyright Act (DMCA) and these Terms, including removing or disabling access to content claimed to be infringing and/or terminating accounts and access to the site. Collectors purchase Zeromint items assuming the risk that it may be subsequently taken down pursuant to a valid DMCA Notice. For more information on the DMCA and filing or responding to a DMCA “Take Down” Notice, please review our Terms of Service.
Penalties for Violating These Guidelines
Failure to abide by these Community Guidelines and Policies may result in, without limitation, suspension of minting privileges, deletion of your account, revocation of your right to access the Zeromint platform, delisting of your art works, or other penalties deemed suitable by the Zeromint team. Zeromint has the unilateral authority and discretion to remove, suspend, or revoke Creators’ access to the Zeromint platform for posting unoriginal content, whether or not a credible “fair use” defense exists.
