nonfungible token; NFT; intellectual property law; right of publicity; technology; First Amendment


Non-fungible tokens (NFTs) allow for authentication and ownership of digital assets, which are notable features in the virtual world given the infiniteness of internet content. The emergence of this novel technology, however, has raised challenges, especially regarding enforcement of the right of publicity. This Note addresses how litigators have approached right of publicity violations arising from NFTs and how courts might respond to future violations that this technology is capable of facilitating. Legal scholars and commentators argue that certain features of NFTs pose pronounced threats to the right of publicity, namely the technology’s novelty, democratized nature, anonymization of creators, transferability across platforms, and immutability. To combat these threats, this Note proposes that rights owners should enter into right of publicity license agreements; that NFT platforms should strengthen their terms of service and develop higher barriers of entry for users; and, finally, that courts should order that infringing NFTs be “burned.”