Art theft and NFT infringements in the web 3.0

How artists and brands can effectively protect their artwork and NFTs against infringers

In this webinar, you will learn:


What is an NFT?


How does NFT ownership work?


What are the benefits of NFTs?


NFT challenges you should know


How NFT copyright infringements work


Copyright registration and ownership in the NFT space


How to prevent NFT art theft


How to enforce NFT infringements on the top NFT marketplaces


Art theft and NFT infringements in web 3.0: How to combat them

What is an NFT?

Liat Karpel Gurwicz  04:04

Thank you. Yeah.  So, I think by now most of us have heard about NFTs and maybe about people’s amazing $69-million sale potentially about the Board Ape Yacht Club. But some of you might still not be 100% clear on what exactly an NFT is and how it works. So, I’ll try to provide a bit of insight. NFT stands for Non-Fungible Token. So, an NFT is a unique cryptographic token that exists on a blockchain, and it cannot be replicated. Because each of these tokens is uniquely identifiable, meaning non-fungible, they differ from cryptocurrencies, like Bitcoin, which are fungible. And at its core, an NFT provides a public certificate of authenticity or proof of ownership. So, this can be for almost anything, including real world items, like artwork, music, even real estate. So, types of NFT data units could include digital files, like photos, videos, audio files. 

And when it comes to digital art, an NFT is essentially your art provenance. So, provenance is the history of ownership behind an item starting from its origin. So, in a real world setting, if you were to go and buy a famous piece of art, let’s say like a Picasso, the provenance would provide documentation of who exactly created it, so in this case, Picasso, and also who owned it throughout its history to help verify that you have the authentic and original piece. So, very similarly, NFT tokenization for specific digital assets allow that item to have data containing all of its provenance, like its source of origin and who has owned that item previously. So, by tokenizing an asset, like a piece of art, you can make buying, selling, and trading that asset much more efficient and also help reduce the probability of fraud. Now, here, I put a caveat and say, if you know what NFT you are buying, who you are buying from, and what content rights are included in that NFT. And I’m sure Ashli will give a lot more insight on that.


How does NFT ownership work?

Ashli Weiss  06:44

Yes. So, I’m going to give a bit more insight on the ownership piece for purposes of intellectual property because, when we’re talking about enforcing, we are talking about ownership and intellectual property. So, we have this great little graphic here, and to the far left is a photographer, this photographer is Noam Galai, and he has produced an image that’s called The Scream. So, let’s say he creates an NFT with this image and it’s subsequently sold, that person in the silhouette doesn’t own the image, she actually has a license to the image. She owns the NFT, which is what Liat had just talked about, but only has a license to the picture of The Scream, which is that middle picture. 

This is confusing and there is a lot of room for clarification in the world of NFTs. So, I like to describe this as, when we have an NFT, we have our image, which is the screen in this example, and then we have that non-fungible token that we had just had a really good description of, and we have the smart contract, there’s code in it, and then it’s minted together. That’s what’s creating our artwork NFT. For purposes of enforcement and for the rest of this conversation, we’re really honing in on protection of that image, the intellectual property, and not that non-fungible token piece, because the person on the silhouette owns that but Noam still owns the image. So, when it comes to enforcement, unless Noam has given enforcement rights to someone else, since Noam is the owner of the image, he is the one that is going to be able to enforce against anyone that’s infringing on The Scream.

Joan Porta  08:42

Thank you, Ashli. I think this is a really interesting topic. And as you said, there’s still a lot of confusion around this, a lot of people buying NFTs who may not really understand what they are entitled to do with that NFT and what they can not do because they don’t actually own the copyright. What do you think, maybe, what are some of the ways that this could be improved in the future? And how could we help bring more clarity to the table?

Ashli Weiss  09:10

I think with any new technology, there’s a learning curve. And we’re just experiencing that learning curve now. So, people now know what an NFT is, even if they don’t know the technicalities of it. Over time, since our society is so immersed in technology post-COVID, we’re all online, we all have our individual identities online, which ties in with NFTs, I think the more exposure that we have with NFTs and the more education around it, the more we’re going to see people that will understand the intellectual property aspects and the ownership aspects of NFTs when they’re buying one.

Joan Porta  09:56

Great. Yes, education I think is a topic that we will discuss also later and an important one in this emerging technology and market that is building up. So, Liat, you obviously have a lot of experience and you work with thousands of digital creators at DeviantArt, can you share maybe with us some of your experiences, and particularly we want to focus on the opportunities and the benefits that NFTs can have for artists, for creators, and even for brands.


What are the benefits of NFTs?


Build lifelong equity

Liat Karpel Gurwicz  10:31

Sure. So, maybe before we dive into some of the details of it, I would say that I think at the highest level, if we think about the ultimate promise of web 3.0 and NFTs and the real opportunity for creators, it’s the potential for them to build lifelong equity from their work through public certification of the ownership, rights, and royalties of their work, without having to be solely dependent on any specific middleman or platform. And that’s a huge difference from where they are today. 

Very often creators have to live with work for hire models where their way of being able to monetize their work is simply by selling it directly, and very few of them are able to actually build longer term equity. So, through NFTs and web 3.0 and by using public blockchains where they’re able to record and register both ownership of their work, as well as the rights around usage of that work, they ultimately could begin to build and enjoy equity from their work. But this is still a very young technology and ecosystem. So, there are still a lot of risks, and many parts of it are still evolving. So, whoever wants to participate really needs to make sure that they are educating themselves before just diving in, whether you’re a creator who wants to sell something or you’re a buyer looking to buy an NFT and make an investment. 

But that being said, if we go back to the fact that we’re talking about being able to register this provenance on public blockchain, where it’s available for anyone to publicly see, that gives creators many opportunities. They’re able to sell their work at scale, they have the secured ownership and a blockchain that cannot be changed, it’s there for perpetuity, it gives them access to a global market because, again, the blockchain is completely open to whoever wants to tap into it and showcase it. And ultimately, and I think Ashli will talk a bit more to this, the fact that you’re able to identify that ownership of an image, which means that creators aren’t going to lose out on longer term benefits from their work.


Image ownership vs NFT ownership

Ashli Weiss  12:58

Yeah. So, I definitely would love to talk about the ownership piece. Thanks for bringing that up. One of the main things that I have my clients asking me about is when it is an artist and they’re developing, maybe it’s a product packaging or an advertisement that will be in a magazine, they are getting inspiration a lot of times from the internet. So, when they have their inspiration board, they come to me with the board and the final product. And oftentimes the inspiration board is including images that they found online and they don’t know who the owner is. And they’re incorporating it into what the final product is. I have to tell them no at that point because we need to ask for authorization from the copyright owner. 

And what’s happening in this regard is whoever has created that image that is now on Google and can’t be found is losing out on money, and then my client is losing out on the ability to produce a piece of product packaging or some relevant artwork in a magazine that they really were passionate about and had a vision for. With NFTs, the absolute beautiful thing that Liat was just honing in on to is that ownership piece, because if my client now comes with me with an image that they want to use for commercial purposes and they know who the owner is, we can reach out to that person and ask them how much is it going to cost to license it for 500 uses or 2 million views on a YouTube video, and the artist is making money, and the person who is using the artwork is going to be very happy. 

Another piece, and I think we might touch on it later, is damages. So, if we don’t touch on it later, I will bring it up near the end of the conversation too because it’s really important from an enforcement property or an enforcement standpoint, and it’s a huge opportunity with NFTs.


NFT challenges you should know

Joan Porta  15:05

Very good. Yeah, we’ll make sure to touch on this later, Ashli. So, we’ve talked about opportunities, which are obviously huge, but those opportunities come also with challenges and with risks that we think everyone should be aware of. We can discuss them now briefly. And then we will be focusing particularly on the IP infringement threats that creators and brands face. But Liat, Ashli, anything you want to share on this? What’s your perspective regarding main challenges and risks that anyone should be aware about?


Smart contracts limitations

Liat Karpel Gurwicz  15:40

Sure. I think that one of the issues at the moment is that smart contracts really differ. They differ between NFT marketplaces. They differ between creators. But I don’t think that the creator necessarily always understands what’s been put into their smart contract when they’re selecting a marketplace to match with, and certainly a lot of buyers don’t understand what they’re buying when they buy an NFT. So, you might think, as Ashli mentioned before, that you buy this NFT and now you have the rights to print this image on T-shirts or on any other kind of merchandise, which you may not necessarily have. 

So, I think the first challenge is, first of all, choosing and understanding the technology partner that you’re going to work with and understanding the limitations of your smart contract. And then I would say because not all blockchains are currently connected, you know, there’s this longer term vision of web 3.0, where everything will be cross-chain and we’ll be able to understand smart contracts across all the chains and enforce them. That doesn’t really exist at the moment. So, obviously, there are a lot of different blockchains, a lot of different marketplaces representing those blockchains. So, even though you might be creating a smart contract with your content rights and royalty rules defined within that smart contract, that doesn’t mean they’re automatically going to be enforced. So, you’re still going to have to deal with how you handle enforcement and how you catch infringement.

Ashli Weiss  17:15

Yeah. And to add on to that, the top challenge that comes to mind for me is how easy it is to take a piece of artwork and then mint it to the blockchain and then sell it as your own. So, that’s just the top one. And honing in on it, again, it’s that education piece too.

Liat Karpel Gurwicz  17:35

So, Ashli, I think you’re so right there. I think on this one it’s worth maybe diving into that example a little bit deeper because, you know, I think we’re also used to a web 2.0 ecosystem, where on any kind of marketplace, if somebody wants to sell something, they have to go through this KYC process, which is a Know Your Customer process, where basically the seller tells the marketplace who they are, provides proof of identity and also proof that they have the legal rights to sell whatever it is that they’re trying to sell. 

And it doesn’t work that way in web 3.0, right? Many marketplaces allow you to simply connect your wallet, which is an anonymous string of numbers and letters, so it could be anyone, and then immediately mint whatever it is that you want to create as an NFT. In many cases, that minting is even free. So, in that case, really anybody could come with anything and quickly mint it as an NFT and maybe have some luck in selling something that doesn’t necessarily belong to them or they don’t have the rights to sell. So, I think there are a lot of checks and balances that are still missing in web 3.0, and I’m sure we’ll dive into more of them as we go, but that’s a big deal. So, choosing the marketplace that you work with, again, both as a creator and a buyer is very, very important, and even then, doing all of your homework around what it is that you’re buying.

Joan Porta  19:08

We’ll talk about this more, Liat, but I think it’s a great point. And this idea of the great advantage or one of the biggest benefits of NFTs, as you mentioned before, the ability to track down the provenance, the origin, the source, who actually minted and created that NFT, that’s something that you can typically not do on web 2.0 or on normal marketplaces. You cannot know who manufactured that product, and therefore it’s very hard sometimes to tell if it is a counterfeit product or not. So, this is where the verification system is good. Verification systems that can stop fake accounts on NFT marketplaces, fake collections which we’re seeing all over the place, we think are going to be a key component to the fight and to keeping the ecosystem safe and clean from infringement. So yeah, a really interesting point. 

I think now that we’re talking about this, it’s a good time to move to our next slide and focus a little bit more on some of the issues or the risks that we see specifically for IP right holders. And we’ll talk threat, threats related to fake NFTs, infringing copyrights, IP. Again, Liat, I know that you’ve seen a lot of these. Can you share a little bit more some of your experiences?


How NFT copyright infringements work

Liat Karpel Gurwicz  20:30

Sure. So, unfortunately, at DeviantArt and through our community, we’ve witnessed a lot of different ways in which NFT infringements are occurring. I think one of the biggest issues that is happening across the industry at the moment is bot attacks. So, bots will come and attack web 2.0 platforms, they’ll scrape them for whatever content they think they can take that will be valuable, and then they’ll just go and automatically mint them on marketplaces that allow that quick and automated minting. So, for example, in December, at DeviantArt, we saw a 300 percent increase in our theft that was identified by our DeviantArt Protect Protocol, I’ll share a bit more about it later, and that was due to bot attacks. We just saw this huge wave of bot stealing and minting work as NFTs. 

And then because we were able to identify this through the technology that we have on our platform protecting against NFT infringement, we put additional protection layers in place to block those bots. But unfortunately, we just saw the bots continue and move on to other web 2.0 platforms, and that’s a phenomenon that continues to this day. We also see just a mass amount, I guess, guest fraud in this space. So, I think an interesting example is even that OpenSea themselves at the beginning of the year came out and admitted that over 80 percent of the NFTs minted on their marketplace we’re essentially fraud. So, I know that OpenSea are working towards figuring out solutions for this, they’ve tried a couple of things, and hopefully they’ll have other things come out. But that just goes to show the scale of the issue that we’re dealing with in web 3.0. 

And yeah, just I think a couple of other areas that are interesting to look at. So, there’s this example that we saw of video game theft. So, it just shows you that you do not need to be active in the NFT space in order for you to suffer infringement there. So, we saw a case where a video game had over 5000 pieces of fan art stolen from Twitter and minted those NFT. So, for this game, obviously that’s a huge IP violation for them. That’s a huge deal for them to be losing these assets. They weren’t even active in creating NFTs, and they were still victims of this kind of theft. 


NFT infringements in Social Media

And other examples are these kinds of social media scams that we see where people will come and impersonate either other creators or brands or new collections that are being put out, essentially just people trying to take a ride on the success of others. So, you can see in the case of the Bored Ape Yacht Club, how many copycats they have in the various marketplaces. So, I think those are like the more common issues that we’re coming across.

Ashli Weiss  23:45

And to add on to that, because I’m really glad you brought up or have this example of video games, because when I’m speaking with people that are interested in NFTs and don’t even sell an NFT yet with their company, and then when we go to like a marketplace such as OpenSea and type in their trademark, and images are coming back, it just is another example of even if you aren’t selling NFTs, there’s probably are going to be infringements of your artwork or your copyright or even your trademark, your brand name on there too.

Joan Porta  24:23

Yup. Great point. And just to close on these and the social media incidents that you were mentioning, Liat, I think this is something we wanted to raise awareness of also, we often talk a lot about the NFT platforms and put a lot of focus on the NFT marketplaces. But what we’re actually seeing while we protect many of our customers against fraudulent NFTs is that very often these attacks are initiated on social media. So, what we’re seeing typically are fake accounts that are impersonating an artist or a brand, like the ones we see on the on the screen, and what they’re doing is they’re targeting your potential customers, sometimes by sending DMS, sometimes by displaying ad campaigns, and then they redirect those customers, those users, into fake NFT collections or listings or even websites in which they try to scam your customers. 

So, I think that, yeah, impersonations also of NFT platforms we’re seeing or digital wallets are a very common form of attack, what we’re seeing there, and I think there’s been a majority of these cases of people that actually lost a lot of money because they were scammed by someone who was pretending to be the customer service, the support team of one of these platforms. 

So, yeah, anyway, we think we’re keeping a close look at some of these social media platforms, and that covers, of course, the traditional ones, the Facebook, Instagram, Twitter, but some platforms like these core, like Telegram and Reddit, where there’s a lot going on related to NFTs, are also very important to monitor and to try and identify some of these accounts that may be impersonating your brand. Very good. We’ve talked about the problem. Is there anything else that you’d like to add, Ashli, Liat, before we move into the solutions?

Ashli Weiss  26:14

Nothing on this end.

Liat Karpel Gurwicz  26:18

I think the only unfortunate thing that I can say is that we see creators hurt by this every single day, where you know, you put all this work into your creation, into your work, into building your following and your channels, and then unfortunately you can just be a victim of this kind of bad player coming in and infringing on your work. So I think, Joan, to your point that the fact that you need to be very, very vigilant and monitor across all areas where potentially your audience is and your buyers could be because all of those could potentially be a place for that attack to happen.


How NFT infringements can affect a creator’s reputation

Ashli Weiss  27:02

You know, I love how you said that because that reminds me of it’s also, so the creator is being hurt by the infringement, but then also the creator’s fans are being hurt by this infringement because they’re spending money on a fraudulent NFT, thinking it’s the real thing from the artists that they want to actually purchase from, and they’re being defrauded. So, it’s something that is not just hurting the customer, but another thing is it’s deluding the creator too. So, if there’s a whole bunch of artwork out there that the creator has or the artist has not actually minted as an NFT, but now people are selling it under their name, it is making their brand either deluded or bringing it in a wrong direction than what they want it to go with to.

Joan Porta  27:56

Yeah, I couldn’t agree more, Ashli, and I think obviously this is about protecting your digital revenues, it’s about protecting your brand equity and your intellectual property. But ultimately, I think it’s really about making sure we’re building an ecosystem that consumers trust, and where they feel safe. And I think that’s the responsibility from all stakeholders to really try to fight this problem and offer solutions. Great. So I think talking about solutions, we can probably move to the next section in which we will be outlining some measures, proactive measures that anyone can take, whether you’re a brand or a digital artist, whether you have actually launched NFTs or even if you’re just, you know, thinking about it, considering it. 


Copyright registration and ownership in the NFT space

So, Ashli, we know that before we actually start talking about enforcing fake NFTs, there are some basic steps that need to be covered that have to do with copyright registrations and ownership. Can you tell us a little bit more about this? And what’s your experience also advising customers in this space?

Ashli Weiss  29:05

Yeah, so I’ll touch base on the second point here, which is that registration piece. So, with the trademark registration, this is going to be your brand name, your slogan, visual image that is known as a trademark. So, that could be, I think, DeviantArt, you’ve got like this really cool D, and that’s a trademark. It could also be a copyright too. But trademark, if you want to enforce trademark, you’re going to want a registration. For copyright though, you don’t need a registration to enforce it from a legal standpoint. You can tell someone to stop infringing on your artwork or your image if you’re able to show that you’re the owner. So, if you don’t have a copyright registration, you’re going to still need to show that you’re the owner when you’re using, and I’ll talk about this a little bit more of the legal tool, a DMCA request. But copyright law, the wonderful thing in the U.S. and I think it’s 151 countries under the Berne Convention, you have protection of your artwork without registering a copyright. And damages is something different, and you will need a registration for, but that’s beyond the scope of this conversation.

Liat Karpel Gurwicz  30:23

I’ll just add there, Ashli, I think that’s such good advice. And in terms of the copyright, once you publish your work online, you can then show that proof of creation and ownership. One of the things that’s great about platforms like DeviantArt or other platforms where you can publish your work is that once you’ve published a piece of art, it has that attached to your profile as a creator, it has the timestamp of the day it was published, it has all of the comments and the history of what happened with that piece of art, and that piece of art also lives in the context of your border profile and gallery that you have. So, all of that goes towards helping to prove that you are the original owner and creator of this work. So, I think any way that you can publish or register your work either on web 2.0 or on the blockchain, you can mint an NFT of your work without any intention to sell. You don’t ever need to sell that NFT if you don’t want to, but you can register the rights and the ownership of your work in the blockchain but by maintaining NFT. 


How to prevent NFT art theft


Backlink to all of your official channels

So, those are all options, and I think thinking about where your fans or customers are likely to search for you. So, if you are offering an NFT collection, then make it really easy for people to find that either on your website or on your social accounts. Make it very clear this is my connection. Make sure that you verify your account in whichever marketplace that you’re using and that you backlink to all of your official channels. It’s the same thinking that you would do in web 2.0 when you publish a website and you have all of your social channels and other places that you’re active online and you connect all of them to each other, and you also make it easy for users to find you from one place to the next. So, do the same for web 3.0, so that if somebody is considering buying your NFT, they don’t fall into that trap of somebody who’s spamming or trying to trick people into buying a fake collection. It’s so easy for them to find the official collection through all of your official channels.


Make sure you have publishing timestamp

Ashli Weiss  32:49

But timestamp is critical too from a legal standpoint. If we’re going to be alleging that we’re the owner and, you know, filing a DMCA request for infringement, if that person comes back and says, “No, I’m actually the owner,” that’s when we’re looking at evidence now. So, the timestamp, if there’s comments, I love hearing about that, I didn’t know that was a feature, but all of these little things add up to actually show that you are the owner if it comes to a stage of the cease and desist or demand letters.


Use a software to monitor fake NFTs

Joan Porta  33:29

Great. So, I think these are the basics, these are the foundations. You’ve established ownership over your work through registrations or by other means. Now, what happens next, you probably want to know whether anyone is selling in NFTs that are infringing on your intellectual property. What we typically advise any creator or brand to do is you have to be proactive. The responsibility of identifying and then potentially submitting takedowns against infringing NFTs relies on you. Of course, platforms are trying to help, they’re trying to clean their marketplaces, but typically you hold the responsibility to go monitor NFT platforms and other channels and identify people who may be infringing on your IP or who may be stealing your art. I know, Liat, that you have a program in place at DeviantArt to help artists on this task, which sometimes can be extremely time consuming, particularly when you’re dealing with large volumes of infringement. So, can you tell us maybe a little bit more about how you’re helping artists and your community from DeviantArt?

Liat Karpel Gurwicz  34:42

Sure. So, we launched in September 2021 our DeviantArt Protect Protocol. Essentially, this is technology that we use to scan NFTs minted on public blockchains. And then using AI technology, we try to match that with content already submitted on DeviantArt to identify potential infringements. So, when we do identify a piece that already exists on DeviantArt that has been minted as an NFT, we will send our user a real time alert, letting them know, linking them to that NFT and also with the option to immediately begin a takedown process with an automated DMCA to the relevant marketplace. So, since we launched, we’ve scanned over 340 million NFTs across public blockchains, and we have sent our users over 340,000 alerts regarding potential NFT art infringements. So, it’s a tool that artists can use to help monitor blockchain for any kind of NFT infringement that potentially is occurring. And then also a tool that they can use in that DMCA process that Ashli and I were talking about before, where essentially the evidence is collected automatically for you, and you’re able to submit that takedown request to the relevant marketplace and show ownership over your original content. 


So actually we’ve been developing our protection technology for several years now. We launched it at the beginning of last year for DeviantArt. So, this concept of art theft is nothing new. It’s not new to web 3.0. It’s not new to the web. I think ever since there would be people who create, there would be those who imitate or forge their work, all the way back to the Renaissance and before. So, over the years, we’ve always dealt at DeviantArt with the issue of art theft. We obviously follow DMCA regulations ourselves, and over the years, we’ve developed many systems and processes and teams to deal with this issue. And we decided that we were going to also use our AI technology to help develop a solution for recognizing art theft. 

So, when we launched this for DeviantArt itself at the beginning of last year, shortly thereafter, there was a very sad and terrible incident where an artist called, Qinni is her username but her full name is Qing Han, she’s a long-term Deviant, very, very beloved by the DeviantArt community, a well-known artist, she passed away, unfortunately. And just after she passed away in February, thieves made NFTs of her work and sold them. And this was as the whole like NFT market was starting to explode, and this whole thing was really starting to kick off. And for many of our creators, that was their introduction to NFTs. And it was shocking for our community. Our creators could not believe that anyone would abuse an artist and their work in that way. And that was a critical moment for us as a team as well because that was when we decided to take the technology that we’d already developed for DeviantArt and expand it for web 3.0 and to the blockchain. And obviously because of the decentralized nature of the blockchain, the fact that everything is open, we are able to scan an index, all of the minted NFTs on the blockchain, and then use our technology to find those infringements of our user’s work.

Joan Porta  38:45

Great. Thank you, Liat. I think, yeah, you mentioned an interesting point here, which is art theft on web 3.0 is nothing new. We’ve been dealing, artists have been dealing, and brands have been dealing with digital IP violations for years. And I think there’s a lot of learnings that we can take from this fight over the years that will also apply against fake NFTs. 


How to enforce NFT infringements on the top NFT marketplaces

So, let’s talk a little bit about enforcement now. You’ve identified infringing NFTs by yourself or using automated technologies, and it’s time to take them down. Ashli, I know that you have written about this, and you have shared a lot of your expertise on this area with the NFT community. Can you tell us a little bit more about NFT enforcement and how to deal with infringements on some of these top NFT marketplaces?


File a DMCA takedown request

Ashli Weiss  39:37

Yeah, sure. So, I created this guideline which is up here on the slide, and essentially what it is is a step-by-step process of how you can submit DMCA takedown request on all of the top NFT marketplaces. I published this in December because I’ve been working with marketplaces and infringement for over eight years now. So, there was a lot of chatter going on in Twitter with artwork getting stolen, and I drafted this up in a couple hours just because I know what I’m looking for. and I gave it to the community. It was valuable, I didn’t realize how valuable, and I was really happy that it helped a lot of people take down infringements, and they had the power in their own hands to do that with this guide. 

I’ll also talk a little bit about the DMCA which I believe is on this slide. The DMCA request is a very powerful tool, and that’s the tool that artists are primarily using to remove any infringement from these marketplaces. You only need a little bit of information to remove an infringement from an NFT marketplace. Since it’s such a powerful tool that requires only a little bit of information, I always warn anyone, when they are going to be using this legal tool, to not abuse it. Because let’s say there is a piece of artwork up there and it’s actually just an inspiration and you’re submitting it to be removed, you are risking your ability to enforce on actual infringements in the future, and you’re also risking a legal action. So, be careful when you’re using that DMCA takedown request. 

When you do submit a DMCA, one of the things that I like to tell people is that it should be removed within a reasonable timeframe. If it’s not removed in a couple of weeks, you need to do something else. Maybe it’s filing a legal letter reaching out to your partner who’s enforcing on your behalf to do something a little bit more. But per the DMCA standards, it needs to be removed in a reasonable timeframe. And then a hot tip that I also like to give artists and creators is when you are submitting a DMCA takedown request through a web form on one of the NFT marketplaces, sometimes, maybe most of the time with NFC marketplaces, you’re not getting an email back from that marketplace saying, “Confirmation. We got your DMCA takedown request,” and it’s actually critical that you get something in writing. So, if you’re not getting a webform bounce back saying, “Hey, this is confirmation that you submitted a DMCA request,” I recommend sending an email also. Then you have that timestamp to say, “Hey, I submitted this takedown request on this date, and it’s been over a week. What’s going on here?”

Joan Porta  43:00

Yeah, I think it’s a very important point. And as you said, most NFT platforms already have good systems in place to process DMCAs and other types of IP takedowns. We’re actually talking and collaborating with many of them. We know they’re investing resources, building teams, building technology to accelerate the process. So, I’m sure that these will even get better over time. And just a brief reflection, when talking about NFT enforcement, enforcement of infringing NFTs, we hear a lot of people, I’ve heard a lot of this idea of, well, when you’re enforcing NFTs, you can’t really remove or eliminate an NFT, right? That token will still remain on the blockchain in perpetuity. Even the digital file linked to the NFT is probably going to be hosted somewhere on the internet, and it’s very difficult or almost impossible to take down. And, well, I think that’s absolutely true. These are all very valid points. But going back to the analogy that we brought up before between fake NFTs and online counterfeit products, we know that many brands have now been fighting online counterfeits in web 2.0 marketplaces for maybe 10-15 years, and they all know that a very effective strategy is to keep the top marketplaces clean, right? So, if you have the first three pages on Amazon, on eBay, on Alibaba but clean from counterfeit listings, you’re actually having a huge impact in protecting your customers and your revenue. 

So, I think, if you think about it, when you take down a listing from a marketplace, the physical counterfeit products still exist, there’s still going to be probably thousands of units of stock in a warehouse somewhere. And we see this as a similar situation as with knockoff NFTs. The token may still exist, someone may still be able to see that NFT on their wallet, but if you make sure that platforms where your customers are going to be buying and trading NFTs are clean, and so if you do that by disrupting access to these fake listings on platforms, you actually have a very effective strategy in place. So, I thought it was worth mentioning this, and I’m also interested, we’re interested to see if anyone in our audience has a different perspective. But this idea of monitoring and enforcing on marketplaces can actually have a huge impact. 

Great. We have about five minutes left. There’s another important topic when it comes to protection and measures that we touched upon before briefly, but we wanted to discuss a bit more in detail now, which is about collaboration and education. Liat, actually, I don’t know which one of you wants to start here.


Partner with marketplaces

Liat Karpel Gurwicz  45:45

Sure. I mean I think I’ll start with the collaboration piece. I think as we go into web 3.0, it is our responsibility as platforms, as players, as creators, as buyers to do everything that we can to make sure that that is a safe and trusted ecosystem. And that will only happen if we all do collaborate and come together to make this a more safe and trusted space. One of the things we’ve been doing with our protect protocol is calling for partners to work with us and to help make our technology better, to use our technology for their user bases and customers, so that we’re able to get these tools out there to those who need them. So, I think that’s a first step in terms of collaboration. I definitely think we need a lot more checks and balances in place, and I think that collaboration will help lead to that because then between the different platforms, it allows for more verification processes and also understanding of bad players or risky NFTs and so forth. So, I can say, even on a small level, when Ashli put out her enforcement guide, she was so generous to make that available to our community, and we share that with our community. You know, I think any kind of tool that we’re able to come together to provide to the ecosystem is a big deal in helping move us forward on these issues.

Ashli Weiss  47:26

And from a collaboration and education standpoint, this is probably the most unpopular comment that I’m going to say whenever I bring this up in front of artists or creatives, but the marketplaces, collaborating with them is actually crucial when it comes to infringement. Of course, when we see our artwork or our creative content up for sale and it’s not being taken down on a marketplace, it is very frustrating just to see that work up there. But to get it down timely, oftentimes we do need to collaborate with the marketplace. And that education piece is teaching the marketplace. So, Liat, you mentioned this. But when we’re teaching the marketplace, it’s coming from an artistic standpoint of what that marketplace can do to prevent infringements from going up there. Maybe that’s brand gating. So, something along the lines of that marketplace has a higher level of entrance rather than just a wallet, maybe you now need to do an ID check or some other form of identification just so when someone does send a DMCA takedown request, there’s the ability to also follow up with a legal action if it’s egregious. So, that’s something else that we can consider from a collaboration and education piece.

Joan Porta  48:51

Great. Yeah, definitely a very, very important point. Good. We’re running out of time here. So, we’re going to wrap it up maybe with a few key takeaways. Based on what we’ve been discussing, we think that it’s really important for, again, anyone, whether it’s a creator, whether it’s a brand, no matter what their NFTs are, if they’ve launched a program or not, it’s extremely important to be proactive. And remember, most of the responsibility will fall on you. Second, extremely important, leverage tools that are already available. There are ways to automate. We’ve talked about DeviantArt, we’ve talked about solutions that help you monitor marketplaces, like Red Points, and there’s many other tools out there that can help you launch reverse image search, for example, and help you basically identify infringements online and submit takedowns at scale. And finally, as we’ve said, stay informed. This is a space that is changing very fast. There’s new platforms, there’s new solutions coming out there, and we think that staying tuned and monitoring closely what’s going on in the market is also key to have an effective strategy in place. 

Liat, Ashli, would you like to close with anything else? Any other tips for our audience today?


Liat Karpel Gurwicz  50:13

I think that what you’re saying here in terms of leveraging tools and staying informed is super important. You know, we offer tools, Red Points offer tools, there are so many platforms out there. Find the one that suits your needs in terms of what it is that you’re doing. But I think one of the biggest challenges for brands and creators alike is that so often the onus of finding the art infringement sits on them. You have to find out that it’s happening, then you have to be the one who files the DMCA and the takedown. And that’s a really hard thing to do across the entire Internet, and certainly as web 3.0 is now exploding and taking off the way that it is. So, I think find tools that can help you because it’s a marathon and you need to pace yourself and be able to handle this. And I think don’t lose heart either. I think the hardest part, I see it for our users and creators, is how devastating and frustrating it can be when you discover those infringements. But there are things you can do. I think making sure that you’re always finding the takedowns and removing those infringement is important both for protecting your work but also for ultimately impacting on how the space works, how those marketplaces work, and helping to create a better ecosystem there, and hopefully, over time, the issue will lessen, and it won’t be such an uphill battle.

Ashli Weiss  51:50

And from a proactive piece, it’s important, we touched base on this a little bit, but even if you’re not selling an NFT or you’re not in the digital space, it’s important to be aware of what the issue may be and be proactive and just see what’s going out on the internet, what’s going on in these NFT marketplaces, because your work may be out there, and you just don’t know about it yet.

Read the full transcript


Joan Porta

VP of Strategy & Innovation at Red Points

Ashli Weiss

Attorney at Weiss Law LLP

Liat Karpel Gurwicz

CMO at DeviantArt

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