The Author's NFT projects show how NFTs are de facto securities, reflect on the history of securities art, investigate what it means to own an NFT, and illustrate the copyright puzzles posed by NFTs.
by Brian L. Frye, Spears-Gilbert Professor of Law at University of Kentucky Law School
Published onJun 29, 2022
The Art of the Token
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Say what you want, 'cos this is a new art school.1
Art is something, if you give it away, you end up having more. But if you sell it, you have more money, which is also appealing. Making money is always hard work, and making money selling art is a real challenge. Everyone says they love art, but no one wants to pay for it, unless everyone else does, too. The trick is being in the right place at the right time. And getting lucky, of course.
Still, making money is the best art. Indeed, only the best art makes money. Or rather, the only way to know for sure that something is great art is to look at the price tag. After all, if price communicates information, surely the price of a work of art tells us its social value, or at least what people with skin in the game think about its social value, which is probably the best we can do.
Walter Benjamin famously observed that the value of art is tied to its “aura” of authenticity.2 He was wrong, but interestingly so. In fact, the value of art has always been tied to the aura of ownership, and authenticity was only ever a proxy for clout. Collectors want to own works that reflect good taste, and other collectors wanting to own a work makes it tasteful. There is no there there, but it’s still there.
Anyway, I’ve made art for decades, but rarely sold any of it.3 Until recently, that is. In the spring of 2021, I learned about NFTs, and in the fall, I sold about $100,000 worth of them.4 What a surprise! Most of my NFTs sold for 0.1 ETH, or about $300, depending on the market price of ETH. I’d be delighted to sell more of them, if anyone is interested in buying. A few editions of my Andy Warhol’s Pantry Tokens NFT collection are still available on the primary market, and many editions from my other collections are available on the secondary market.5 Happy shopping!
So, what am I selling? Nothing. I mean, on some level, every artist is selling nothing. Or rather, in practice, they’re selling a fractional interest in their celebrity to people interested in speculating on their fame.6 No one but a blockhead ever bought a work of art, except for money. Sure, artists tell a good story about what a work of art means. You can’t sell the Brooklyn Bridge without one.7 But what they’re really selling is the price. By which I mean the price in the future, when the work becomes more valuable.
Whatever. I sell nothing, and I tell people I’m selling them nothing. And they seem to like it. Why not? I’m happy to profit by selling people nothing, especially when they seem to resell my nothing for considerably more than they paid for it. Who says you can’t get something for nothing?
When I discovered NFTs, I immediately fell in love. It was as if I had slept and dreamed about an absurd market in nothing, and when I woke up, the market existed. Hallelujah! I loved the NFT market because I didn’t understand it, but it existed anyway. Which meant I had something to study and try to explain.
If you had described the NFT market to someone before it existed, they would have thought you were nuts. I should know. When I tried to describe the conceptual art market to my academic colleagues, they thought I was putting them on. The NFT market is the conceptual art market without the concept, which makes it both more honest and more absurd. Many people still refuse to believe it exists, even as it stares them in the face. There’s nothing quite like someone patiently explaining why a market shouldn’t exist in theory.
Eventually, I realized that I was fascinated by NFTs because they disaggregate art and ownership, enabling NFT collectors to own—or “pwn”—the concept of ownership itself, without needing to exercise any control over the use of the work they nominally own.8 If ownership doesn’t require control, maybe copyright is obsolete? What’s more, if NFTs enable authors to securitize their fame, maybe they can enable authors to sell their risk to speculators. Who need to sell copies when you can sell clout?
These observations informed all of my own NFT projects, which show how NFTs are de facto securities, reflect on the history of securities art, investigate what it means to own an NFT, and illustrate the copyright puzzles posed by NFTs. Each of my NFT collections is accompanied by an essay, which explains the project and provides context for the works in the collection. Here are four of those essays.
I propose to offer for sale to the general public multiple editions of a work of conceptual art titled “SEC No-Action Letter Request 3: Securitized NFTs.” The work consists of my submission of a no-action letter request to the SEC, asking the SEC to agree that my proposal to sell the work to the public does not constitute the sale of an unregistered security and to agree that the SEC will not recommend any enforcement action in connection with the sales I propose.
Specifically, I propose to sell 50 editions of the work of conceptual art “SEC No-Action Letter Request 3: Securitized NFTs” in the form of 50 non-fungible tokens (NFTs) offered for sale to the highest bidder on the NFT marketplace OpenSea. All of the NFTs are identical. Each NFT will comprise one edition of the work, and ownership of an NFT will constitute ownership of 2% of the conceptual artwork “SEC No-Action Letter Request 3: Securitized NFTs.” Ownership of an NFT will not constitute ownership of any other property interest of any kind, tangible or intangible.
The webpage offering the NFTs of the work “SEC No-Action Letter Request 3: Securitized NFTs” for sale will provide the following explanation to prospective purchasers:
The work of conceptual art “SEC No-Action Letter Request 3: Securitized NFTs” consists of the submission of a no-action letter request to the SEC, proposing to sell the work of conceptual art “SEC No-Action Letter Request 3: Securitized NFTs” to the public in the form of 50 NFTs. The no-action letter request will ask the SEC to agree that my proposal does not constitute the sale of an unregistered security and to agree that the SEC will not recommend any enforcement action in connection with the sales.
The work of conceptual art “SEC No-Action Letter Request 3: Securitized NFTs” exists in a limited edition of 50. Ownership of this NFT comprises ownership of one edition of the work, and constitutes ownership of 2% of the work. Ownership of this NFT does not constitute ownership of any other property interest of any kind, tangible or intangible.
The 50 NFTs of the work of conceptual art “SEC No-Action Letter Request 3: Securitized NFTs” will be offered for sale at a minimum price of 0.1 Ethereum (ETH), which is currently valued at about $400. I will promote the work of conceptual art “SEC No-Action Letter Request 3: Securitized NFTs” and encourage people to purchase the NFTs that constitute ownership of the work.
Owners of NFTs of the work of conceptual art “SEC No-Action Letter Request 3: Securitized NFTs” will be able to sell their NFTs on the OpenSea marketplace, as well as other NFTs marketplaces, depending on the rules of the various marketplaces. The value of those NFTs will be determined by the demand for them.
I will use at least 5% of the proceeds from the sale of the work of conceptual art “SEC No-Action Letter Request 3: Securitized NFTs” to increase the value of the work by promoting it to the public. Among other things, I will attend art fairs where I can discuss the importance of the work, entertain art critics in order to encourage them to review the work, and purchase advertisements in art-related publications. In addition, I will promote the offering on Twitter, as well as other social media platforms frequented by NFT investors. I will also sell 5 editions of the work for 0.1 ETH to certain individuals, as a commission in exchange for their efforts in promoting the work to the public.
In my article SEC No-Action Letter Request, I described a similar work of conceptual art titled “SEC No-Action Letter Request,” which consisted of the submission of a no-action letter request to the SEC, proposing the sale of the work to the public in an edition of 50 for $10,000 each, and asking the SEC to agree that my proposal did not constitute the sale of an unregistered security.9
I also explained why I believed that the work of conceptual art “SEC No-Action Letter Request” was a “security” under the Securities Act of 1933 and the Howey test.10 Accordingly, I expressed my belief that my proposal to sell “SEC No-Action Letter Request” required its registration as a security, and advised the SEC to deny my no-action letter request.
On January 1, 2020, I submitted the no-action letter request described in the article and included as an attachment to the SEC. I received no response. On November 16, 2020, I submitted a Freedom of Information Act (FOIA) request to the SEC, asking for any documents related to its consideration of my no-action letter request. The SEC acknowledged receipt of my FOIA request, but on March 10, 2021, it invoked the deliberative process privilege and refused to produce any documents.
Based on the SEC’s failure to respond to my no-action letter request or my FOIA request, and the SECs failure to pursue an enforcement action against me for the sale of editions of the work conceptual art “SEC No-Action Letter Request,” I assume that the SEC has concluded that the sale of the work was not the sale of an unregistered security.
My proposal to sell the work of conceptual art “SEC No-Action Letter Request 3: Securitized NFTs” is not materially different from my proposal to sell the work of conceptual art “SEC No-Action Letter Request.” So, I assume the SEC will conclude that my proposal to sell this work also does not constitute the sale of an unregistered security.
Accordingly, you should grant my request for a no-action letter, unless you have reconsidered your failure to act on the sale of “SEC No-Action Letter Request.”
Sincerely,
Brian L. Frye
Chief Executive Artist
Securities Art Inc.
The Securities Art LLC Non-Fungible Token Bond
A great philosopher once observed, “Being good in business is the most fascinating kind of art.”11 Marcel Duchamp agreed. His artistic practice consisted in part of demonstrating that a clever artist can sell anything, whether it’s a painting, a sculpture, a piece of trash, an abstract idea, or even a fraudulent scheme. After all, a grift is what you make of it. A good grift is profitable, but a great grift attracts repeat customers. Art has always been the very greatest grift, because the marks literally beg to get swindled. What a racket!
Marcel Duchamp, Monte Carlo Bond No. 30 (1924)
Duchamp’s Monte Carlo Bonds
Anyway, these days Duchamp is best known for his “readymades,” ordinary objects he transformed into art by proclamation. Can a urinal be an art object? Sure, why not, “art” is perlocutionary. Anything can be art, if someone who claims to be an artist declares it so. Of course, “art” and two bits’ll buy you a cup of coffee, unless and until someone wants to own it. It’s kinda like how anything can be a security, if the SEC wants to regulate it. Someone’s still gotta make an offering for the magic to happen.
But Duchamp had many tricks up his sleeve. And one of the funniest was his venture into securities fraud, “Roulette de Monte Carlo Emprunt de Quinze Mille Francs” [“Monte Carlo Roulette Loan of 500 Francs”] (1924), better known as his “Monte Carlo Bonds.” Essentially, Duchamp announced that he had devised a secret system of betting at roulette that would generate a profit, and asked people to invest 500 francs in exchange for a share of the profits. The terms of Duchamp’s bond were as follows:
Extracts from the Company Statutes
Clause No. 1. The aims of the company are:
1. Exploitation of roulette in Monte Carlo under the following conditions.
2. Exploitation of Trente-et-Quarante and other mines on the Cote Azur, as may be decided by the Board of Directors.
Clause No. 2. The annual income is derived from a cumulative system which is experimentally based on one hundred thousand rolls of the ball; the system is the exclusive property of the Board of Directors.
The application of this system to simple chance is such that a dividend of 20% is allowed.
Clause No. 3. The Company shall be entitled, should the shareholders to declare, to buy back all or part of the shares issued, not later than one month after the date of the decision.
Clause No. 4. Payment of dividends shall take place on March 1 each year or on a twice yearly basis, in accordance with the wishes of the shareholders.
Each bond was a collage, consisting of a photograph of Duchamp pasted onto a lithograph, with a numbered stamp affixed to the bond. According to Duchamp, only bonds with stamps were valid. While Duchamp initially planned to sell 30 bonds, he only ever created 8. Of course, he also printed many reproductions of the bond, without stamps.
It appears that Duchamp’s system of betting at roulette wasn’t successful. If he ever had a system or tried putting it into effect. In any case, Duchamp never paid out on any of his bonds.
But don’t feel sorry for his collectors, they made out like bandits. As Duchamp’s fame increased, so did the value of his works, including lesser-known works like his Monte Carlo Bonds. In 2015, Christie’s sold Duchamp’s Monte Carlo Bond No. 30 for $2.4 million.12
Brian L. Frye, Non-Fungible Token Bond No. 1 (2021)
NFTs as Securities
Everything old is new again. For decades, art got weirder and weirder, but the art market stayed more or less the same. Sure, conceptual art presented a challenge to art market norms, but the market was up to the task. As always, markets will out. If there’s a dollar to be made, the market will find a way.
Then, out of the blue, along came non-fungible tokens or “NFTs.” Suddenly, it was possible to transact in “ownership” of works of art, without having to control anything other than the concept of ownership. NFTs were essentially conceptual art taken to its logical conclusion. If it’s the concept that matters, not the execution, why not let everyone use the work, and let the collector own the concept of ownership itself? It was terrifying, perfect, and obvious, all at the same time. And the art market wasted no time accommodating itself to this new model.13
I was intrigued, and immediately began creating NFTs of works of conceptual art, reflecting on the concepts of creating NFTs, selling conceptual art, and regulating the art market.14 Among other things, I created an NFT of my work of conceptual art SEC No-Action Letter Request, which consisted of sending a no-action letter request to the SEC, proposing to sell 50 editions of a work of conceptual art titled “SEC No-Action Letter Request” for $50,000 each, and asking the SEC to opine on whether the proposal would constitute the sale of an unregistered security.15 Unfortunately, the SEC never responded to my no-action letter request.
The NFT of the work was titled “SEC No-Action Letter Request 3: Securitized NFTs,” and it was intended to demonstrate how the sale of conceptual art can satisfy all of the requirements for regulation as a security, including a robust primary and secondary market for the offering.16 Still, no dice. The SEC isn’t interested. Or, more to the point, it’s embarrassed to admit that its “definition” of a security boils down to an ad hoc determination of whether the offering at issue looks like the kind of thing the SEC is used to regulating. For better or worse, the SEC wants nothing to do with conceptual art, especially the variety I have on offer.
The NFT Bond
But I am nothing if not cussed, especially when I think a troll is particularly amusing. And there’s nothing more amusing than trolling the SEC. So I figured I’d take a page from Duchamp and create an NFT bond. After all, bonds are also securities, as the SEC is fond of telling cryptocurrency platforms like Coinbase. If the SEC refuses to regulate my equity offerings, maybe I can convince it to regulate my debt offerings? All I want is a little regulation, is that too much to ask? Even if my conceptual art and NFTs are mediocre, there are lots of mediocre conceptual artists and NFT merchants. Aren’t we entitled to a little regulation, and a little chance? We can’t have all Ponzis, Warhols, and Beeples.
After several minutes of reflection, I decided to create a 0.1 ETH bond issued by my imaginary company, Securities Art LLC, which purports to be organized in Kentucky, but does not actually exist. I masquerade as the Managing Member of said LLC, and have authorized the issuance of debt on its behalf.
Specifically, I have devised a confidential method of investing in non-fungible tokens on Ethereum, and Securities Art LLC has issued bonds that entitle investors to a share of the profits generated by the use of that confidential method of investing. I will sell each bond for 0.1 ETH or the equivalent in good will, and promise to repay the principal and 100% interest on January 1, 2031, in the sum of 0.2 ETH.
I have issued my NFT bond in a series of 40 debentures, each of which is associated with an NFT. The owners of the NFTs are entitled to a certificate memorializing their ownership. But I will provide a mock certificate to anyone who requests one, at my ultimate discretion. After all, the certificate alone is meaningless and valueless. Only an NFT can transform it into a debenture with value.
Reflections
Obviously, my NFT bond is a spoof on the SEC’s utter and abject failure to articulate even a basic understanding of how the NFT market works, what it does, or why anyone would invest in it, framed as an homage to the original art jester, Marcel Duchamp. But it is also a gesture of faith in the potential of NFTs and the possibility that the NFT market represents a new way of rewarding creative expression. If everyone is laughing, is that such a terrible thing?
Adopt a Design Patent: 1842-1925
Brian L. Frye, USD68104: J.Y. Jenkins, Statuette (1925), Adopt a Design Patent (2021)
This collection of 50 NFTs is based on 50 United States design patents filed between 1842 and 1925. Each NFT in this collection is of a different design patent and consists of an image derived from that design patent.
The purpose of this collection is to encourage the adoption of abandoned and forgotten designs, and their reuse for new and different purposes. Obviously, the images associated with the NFTs in this collection could be used as profile pictures. But there are other potential uses as well. After all, they were created as ornamental designs for commercial products. They could still be used as ornamental designs or as trademarks, among other things. Their potential is yours to explore.
All of the materials in this collection are in the public domain, so there are no legal restrictions of any kind on the use of the design patents or the images they include. Accordingly, the owner of an NFT from this collection may use the image associated with the NFT for any purpose, including commercially.
What is a design patent?
A design patent is a kind of patent that creates an exclusive right to use a new, original, and ornamental design for an article of manufacture for a limited period of time.17 Essentially, design patents protect the way a product looks, rather than the way it works. A design patent includes one or more images, usually monochrome line drawings, and claims the exclusive right to use the design depicted in those drawings.
Congress created design patents in 1842. Since then, the United States has granted almost 1 million design patents. The Patent Office grants design patent applications only if they claim new, original, and ornamental designs. In other words, the design must be more than trivially different from previous designs, and it cannot be the only functional design for the product. Once granted, design patents last for 15 years.
Why are the materials in this collection in the public domain?
All of the design patents in this collection expired a long time ago, so the designs are in the public domain. However, the elements of a design patent can also be protected by other forms of intellectual property. Specifically, the images in a design patent can be protected by copyright and the designs as applied can be protected by trade dress.
These drawings were probably never protected by copyright, because they were published in a design patent without a copyright notice. But even if they were protected by copyright, the longest possible copyright term has expired, and they are in the public domain.
Unlike design patents and copyrights, trade dress protection doesn’t have a fixed term, and lasts as long as a distinctive trade dress is used in commerce. As far as I know, none of the designs in this collection are currently in production, and some may never have been produced. In any case, trade dress protects the appearance of a product, not the appearance of a drawing of the design of a product, and only prohibits the production of confusingly similar products.
Why does any of this matter?
One of the many open questions posed by NFTs is the relationship between an NFT and whatever it represents. Most NFTs are related to digital works of one kind or another: images, sound recordings, literary works, and so on. However, it’s often unclear what rights, if any, the owner of an NFT has in the work it represents. Sometimes, the owner of a work uses an NFT to explicitly convey certain rights in that work. But other times, the owner of work doesn’t specify what rights, if any, the NFT conveys. And occasionally, people sell NFTs of works they don’t own.
This collection is intended to reflect on the nature of the ownership interest conveyed by an NFT. Strictly speaking, everything associated with these NFTs is in the public domain, and can be used by anyone, anytime, in any way. They once became property, but have returned to the commons. They once were rare, because we chose to limit their use to the person who claimed them, but their rarity was evanescent and has long since melted into air.
And yet, in a sense, they remain rare. Only a tiny fraction of designs are protected by design patents, and design patents were unusual until quite recently. What’s more, these designs were long forgotten, languishing in the records of the Patent Office, until I resurrected them for this collection. What is more rare than an object of value, lost and reclaimed?
This collection of NFTs offers the opportunity to claim ownership of these strange and historical designs, while still leaving as much and as good for others to enjoy. How will you use them? That’s up to you.
Andy Warhol’s Pantry Tokens
The presence of the original is the prerequisite to the concept of authenticity.18
What is art? Whatever an artist can sell. And good artists can sell just about anything. As Andy Warhol famously observed, “Making money is art and working is art and good business is the best art.”19
For his part, Warhol never had any trouble selling his art, once he spotted the main chance and seized it. His work was always imperfectly beautiful and beautifully imperfect. But it didn’t really matter, and no one really cared. The key to his success—the key to any artist’s success—was his ability to tell a compelling story, and his willingness to tell it over and over again. And Warhol’s stories were fabulous, even when nothing else really was.
Warhol would have loved NFTs, and would have loved the NFT market even more. It’s the purest art market one can imagine, because it dispenses with art in favor of transactions in pure authenticity. In 1969, he told a reporter, “The new art is really a business. We want to sell shares of our company on the Wall Street stock market.”20 Sadly, he never saw his dream realized. But his vision found a way, long after his death. After all, what is the NFT market but artists explicitly and gratefully selling shares in themselves?
Walter Benjamin famously claimed authenticity and art were indissolubly bound together, authenticity creating art and art proving authenticity. It seemed so obvious once he said it. But then the NFT market proved him wrong, by effortlessly and unwittingly divorcing authenticity from art. Why buy and sell art, when you can buy and sell the concept of owning art? It sounds so simple, once you say it. Then you realize what it means. Art never needed copyright, it only needed scarcity.21 And maybe everything can be art, if we want it to be.
Recipes for Art
In 1949, Warhol moved to New York City and worked as a commercial illustrator, while pursuing an art career. He soon became known for his drawings of shoes, which were published in Glamour, among other places.
Throughout the 1950s, Warhol published limited-edition artist’s books on many different subjects. Typically, the books consisted of drawings by Warhol and calligraphy by his mother Julia Warhola.
In 1959, Warhol published Wild Raspberries, a satirical “cookbook” mocking the fashionable French cookbooks of the era. The title was a wry nod to Ingmar Bergman’s film Wild Strawberries (1957), and a way of “blowing raspberries” at the cookbook market. Warhol published 34 copies of Wild Raspberries, which comprised 18 offset lithographs, with hand-colored drawings and hand-written text. Warhol created the drawings, his friend Suzie Frankfurt wrote the text, and his mother Julia Warhola did the calligraphy.22
The drawings in Wild Raspberries reflect Warhol’s signature style at the time: boldly graphical, but loosely-drawn, and featuring his distinctive blotted-line technique. The “recipes” are ridiculous, obviously not intended for use, and poking fun at faded celebrities and failed politicians.
Unfortunately, Wild Raspberries didn’t sell. Warhol left a few copies on consignment at Doubleday and Rizzoli, and gave the rest to friends as presents. But as with all things Warhol, Wild Raspberries was only waiting for its moment. Decades later, copies resurfaced, to great acclaim. The artist’s book no one really wanted, full of recipes impossible to cook, was suddenly in high demand. Always order the special, the chef believes in it. That’s why it’s on the menu.
Drawings for Recipes
Andy Warhol, [Hors d'Oeuvres Tray], in Amy Vanderbilt’s Complete Cookbook (1961)
Amy Osborne Vanderbilt was an author, celebrity, and expert on the rules of etiquette. She rose to fame in 1952, when she wrote Amy Vanderbilt's Complete Book of Etiquette, which is still in print. In 1954, Vanderbilt became the host of the popular television show It’s in Good Taste. And in 1961, she wrote Amy Vanderbilt’s Complete Cookbook, a compilation of popular recipes and cooking techniques that was published by Doubleday & Company, Incorporated. The cookbook was illustrated by Andy Warhol, who contributed about a hundred simple pen and ink line drawings, depending on how you count them.23 The title page of the book prominently includes the credit, “Drawings by Andrew Warhol.”24
Amy Vanderbilt’s Complete Cookbook Copyright Registration Record
Doubleday published Amy Vanderbilt’s Complete Cookbook with a copyright notice identifying Amy Vanderbilt as the copyright owner, and Vanderbilt registered the book with the Copyright Office. The copyright registration states that the book includes drawings by Andy Warhol, but lists Amy Vanderbilt as the only copyright owner. In 1980, the copyright in the book was assigned to the Estate of Amy Vanderbilt Kellar and Curtis B. Kellar, who was Vanderbilt’s husband at the time of her death in 1974.25 And in 1989, the copyright in the book was renewed by Vanderbilt’s son, Lincoln G. Clark.26
So, who is the copyright owner of the drawings in Amy Vanderbilt’s Complete Cookbook? As is so often the case, it’s hard to say for certain, without knowing the details of their creation. However, either Vanderbilt or Doubleday presumably commissioned Warhol to create the drawings for the book.27 Under the Copyright Act of 1909, which would have governed the vesting of copyright ownership at the time the drawings were created, the drawings were almost certainly works made for hire, so copyright ownership vested in the employer.28 After all, Vanderbilt or Doubleday surely could have exercised the power to control or supervise Warhol’s work, whether or not they actually did.29 Accordingly, the initial copyright owner of the drawings was probably Amy Vanderbilt, and the current copyright owner is her successor or their assign. Do they even realize they are the copyright owner? I tend to doubt it. They certainly don’t seem to care.
What’s more, the original drawings that Warhol created for the book seem to have disappeared.30 He probably gave them to Doubleday and forgot about them. As a consequence, the “reproductions” have become the “originals.” Every copy of Amy Vanderbilt’s Complete Cookbook is a de facto repository of limited-edition prints of Andy Warhol drawings, and the closest one can get to the “original.”
Homeopathic Authenticity
Andy Warhol, Fairies (1954) / MSCHF, Possibly Real Copy of ‘Fairies’ by Andy Warhol (2021)
In October 2021, the art company MSCHF created the “Museum of Forgeries” and released a work of art titled, “Possibly Real Copy of ‘Fairies’ by Andy Warhol” (2021), which consists of Andy Warhol’s drawing “Fairies” (1954) and 999 forgeries.31 The work “Possibly Real Copy of ‘Fairies’ by Andy Warhol” was MSCHF drop number 59.32
MSCHF bought “Fairies” in 2016 for $8,125, and it was recently appraised for $20,000.33 In 2021, MSCHF used a robot to create 999 perfect copies of the drawing on artificially aged paper, then shuffled the original with the copies. All 1000 drawings look identical, so it’s impossible to know which one is the original, or even if one is the original.
The collection sold out in minutes, for a total of $250,000.
So, what happened to Warhol’s artwork? Maybe MSCHF destroyed its authenticity, by making the original impossible to distinguish from the copies. “By burying a needle in a needlestack, we render the original as much a forgery as any of our replications.”34 Or maybe the authenticity of the original drawing rubbed off on the copies. After all, the authenticity of the original was critical to MSCHF’s new work, which was “activated” by the sublimation of the original drawing. In any case, Warhol’s minor drawing was transformed and elevated by a new work that took it just seriously enough to ask what it meant, but not so seriously as to fetishize it. Does it really matter which drawing is the “original”? Did it ever matter, except to distinguish an object worth about $20,000 from 999 other objects worth nothing?
Brian L. Frye, Andy Warhol’s Pantry Token 1: Hors D’Oeuvres Tray (2021)
Imaginary Authenticity
If the authenticity of an original work of art can rub off onto a bunch of forgeries, maybe authenticity is more contingent than we realized. Art collectors only want original works and disdain forgeries. But what’s the difference?
In November 2021, I created the NFT collection Andy Warhol’s Pantry Tokens.35 I named the collection after my 2014 law review article Andy Warhol’s Pantry, which reflected on Warhol’s use of food in his art.36
Andy Warhol’s Pantry Tokens comprises 60 NFTs of 60 works I created. Each work consists of a limited-edition print of an Andy Warhol drawing that I cut out of a copy of Amy Vanderbilt’s Complete Cookbook and glued onto a correspondence card.37 I used correspondence cards with a gold foil border to make sure my works were classy. I think Warhol would have approved.
Anyway, I created a JPEG of each work and used those JPEGs to illustrate the NFTs in the collection. Each NFT represents one of the 60 works I created and is illustrated by a JPEG of that work. Ownership of the NFT of one of those works constitutes ownership of the work itself. I will store the unique copies of all of the works in the Brian L. Frye Shoebox Art Freehold, which is secured in a secret location. At any time, the owner of an Andy Warhol’s Pantry Token NFT can exchange their NFT for the corresponding work by burning their NFT and sending me their mailing address.38
I have already given away 10 of the NFTs in the Andy Warhol’s Pantry Tokens collection. I will offer to sell the other 50 NFTs for 0.1 ETH each on Friday, November 19, 2021, at 9:45 a.m. EST, while I am speaking on the “Session I: The Intersection of NFTs and Copyright” panel at the “NFTs: Future or Fad?” symposium sponsored by the Kernochan Center at Columbia Law School. The panel will discuss whether and how NFTs implicate copyright. I hope the panel will reflect on whether this NFT collection infringes copyright, and if so, how and why.
Explaining the Joke
As a law professor, I create hypotheticals. It’s my job. But the best hypotheticals are real. I hope the Andy Warhol’s Pantry Tokens collection of NFTs provides some interesting hypotheticals about whether, when, and how NFTs might infringe copyright. Here are a few of them.
If a copyright infringement claim exists, who is the copyright owner? Doubleday hired Andy Warhol to illustrate Amy Vanderbilt’s Complete Cookbook. Are the drawings Warhol created for Doubleday works made for hire?
Does cutting a picture out of a book, gluing it to a card, and selling it constitute copyright infringement? Compare Mirage Editions, Inc. v. Albuquerque ART Co., 856 F. 2d 1341 (9th Cir. 1988) (holding that cutting a photograph of a painting out of a book and gluing it to a tile infringes the copyright in the painting) with Lee v. ART Co., 125 F. 3d 580 (7th Cir. 1997) (holding that cutting a photograph of a painting out of a book and gluing it to a tile does not infringe the copyright in the painting).
If a work copies an original element of a copyrighted work, does reproducing the work infringe the copied work? What if an image of a particular copy of a work is reproduced for the purpose of selling that particular copy?
Does creating an NFT of a work necessarily implicate copyright ownership of the work? What if the NFT represents a work that incorporates original elements copied from another work?
If an NFT represents ownership of a unique copy of a work that incorporates a unique copy of another work protected by copyright, does using an image of the work represented by the NFT in order to sell the NFT implicate the copyright in the copied work?
If an NFT representing ownership of a unique copy of a work is burned in order to exchange the NFT for the copy, can the persistence of the webpage documenting the existence of the NFT implicate copyright?
I find these questions interesting, because they illustrate some of the difficult metaphysical questions NFTs pose about the subject matter of copyright. Do NFTs themselves implicate copyright? Does selling NFTs of copyrighted works implicate copyright? Does selling NFTs of unique copies of works implicate copyright? I think the answer to all of these questions is “it depends.” But I also think the Andy Warhol’s Pantry Tokens collection of NFTs doesn’t infringe copyright in any way.
It’s kind of a shame, because I prefer to infringe copyright as flagrantly as possible. But sometimes it’s more amusing to look like an infringer, without actually infringing.
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