Earlier this year, we wrote about some of the NFT-related litigation working its way through courts around the country.  Recently, one of those cases culminated in a substantial win for Yuga Labs, creator of the famous “Bored Ape Yacht Club” NFT collection. 

On February 8, just two days after we published our last post, the jury in the MetaBirkins case reached a verdict, awarding Hermès $133,000 in damages in connection with the fashion house’s claims of trademark infringement, dilution, and cybersquatting. 

Almost two years ago, we shared some thoughts about the NFT market, how it might interact with the traditional art market, and what questions and issues it might raise as it develops.  Now, we are watching with interest as an early wave of NFT-related litigation begins to make its way through the courts.  In this update, we explore some of the legal disputes that are applying established law to this new context, and raising novel questions for courts to decide.

An infringement case pending in a California federal court raises some interesting questions about how copyright law applies in the context of interactive art installations—an important topic in an art market that is increasingly exploring these innovative forms and mediums.

​In early 2021, the street artist known as Futura filed a lawsuit against the North Face Apparel Corp. (“NFA”) for unfair competition, alleging that NFA illegally adopted Futura’s iconic circular atom for its outerwear line called “FUTURELIGHT.”   Recently, NFA issued a public statement regarding the lawsuit, and NFA has committed to discontinuingthe use of their FUTURELIGHT logo out of deference to Futura.  However, the lawsuit remains unresolved and involves novel legal issues that could affect the landscape of trademark law. 

At the very end of 2020, Congress enacted new legislation that will provide a streamlined process for adjudicating small-claim copyright infringement cases.  The Copyright Alternative in Small-Claims Enforcement Act of 2020 (the “CASE Act”), included as part of the COVID-19 Relief Bill, establishes a new Copyright Claims Board (“CCB”) to oversee claims of copyright infringement that do not exceed $30,000.  Some see this is an efficient solution for those seeking to adjudicate minor copyright disputes, while others view this legislation as a potential avenue for attacks on everyday internet users who may lack the resources to track and opt out of these proceedings.

A recent trademark decision in the Southern District of New York has extended First Amendment protections generally reserved for works of art to the popular video game  “Call of Duty.”  Analyzing video games as expressive works for purposes of federal trademark claims has widespread legal implications for video game manufacturers and distributors, allowing them an important shield against allegations of trademark infringement.

Netflix’s “Tiger King” has become one of the streaming service’s most popular series in the last few weeks, documenting the years-long fight between Joe Exotic (né Schreibvogel), the self-proclaimed “Tiger King,” and Carole Baskin, founder and CEO of Big Cat Rescue Corp. (“Big Cat Rescue”).  The feud led to three separate intellectual-property lawsuits that bankrupted Exotic and serve as a cautionary tale as to how competitive antics can have severe legal consequences.