Can I sell paintings as NFT

Mike LaTour | Soundwave Art ™
2019 Finalist - Digital Innovation In Art Award

You’ve probably heard of NFTs by now, they’ve been a hot topic ever since Mike Winkelmann – the digital artist known as Beeple sold an NFT of his work for $69 million on March 11, 2021. Yeah, you read that right. Someone paid $69 million for a digital piece of art. Could this be the future of art and collectibles? We’ll discuss what NFTs are and whether you as an artist should be selling NFT art.

Non-Fungible Tokens (NFTs) have been around since 2014 but have recently gained popularity. NFTs are a type of digital asset that are either unique or rare. A digital collectible if you will. NFT’s can be unique meaning there will only ever be one of them or in some cases they can be limited meaning there will only be a small amount of them to ever exist.

An NFT is a unit of data stored on a digital ledger called a blockchain which can be sold or traded and easily tracked. NFTs can be used to represent items such as audio, photos, video, and other types of digital files. While copies of these digital items may be available for anyone to obtain, NFTs are tracked on blockchains to provide the owner with a proof of ownership which also offers a trail of ownership. This is a powerful aspect of NFTs. When you sell an NFT you are of course making money on that sale but not only that, you’ll earn a royalty on any future sales. When you create or “mint” an NFT you can set the royalty percentage that you will be paid if/when that NFT is sold in the future. Royalty payments are perpetual and are executed by smart contracts which you set up when you “mint” your NFT.

Setting up a digital wallet is easy. All you need to do is download your chosen app (or extension) and set up an account. First, you’ll need to go through some security steps and agree to the terms and conditions. Then, you should be good to go!

What is an NFT?

But before we dive into how to create an NFT, let’s start at the beginning. What exactly are NFTs, anyway?

NFT stands for Non-Fungible Token, but you’d be forgiven if you’re still confused. It’s a unique digital file unlike any other in the world. They can’t be duplicated or destroyed and range from commonplace to extremely rare.

Some people collect NFTs like they would regular artwork and paintings. And in the same way, an NFT can hold value, so you can resell it and even make a profit. (Although nothing is guaranteed).

As a result, you could even buy an NFT as a type of investment. And as the artist, you can earn royalties each time it’s resold, even years later.

An NFT could be any form of digital art, such as a video, song, or digital drawing. It could even be a GIF or a meme. It’s hosted on a blockchain, and the same technology also establishes the owner of the NFT.

TLDR: You own the work, not the copyright. Please don’t confuse the two, please do not make this particular NFT, and may I also suggest “tokenizing” for your verb form?

Can I Be Sued for Making an NFT of a Painting in My Collection? + Other Artists’-Rights Questions, Answered

Plus, does the Nirvana baby really have a shot in his lawsuit against the band? And can an artist remake a film shot for shot?

A visitor takes a photo of a painting at Art Basel Hong Kong in May 2021. (Photo by Miguel Candela/SOPA Images/LightRocket via Getty Images)A visitor takes a photo of a painting at Art Basel Hong Kong in May 2021. (Photo by Miguel Candela/SOPA Images/LightRocket via Getty Images)

Have you ever wondered what your rights are as an artist? There’s no clear-cut textbook to consult—but we’re here to help. Katarina Feder, a vice president at Artists Rights Society, is answering questions of all sorts about what kind of control artists have—and don’t have—over their work.

Do you have a query of your own? Email [email protected] and it may get answered in an upcoming article.

It’s embarrassing for me to ask you this, because I graduated from law school and have been licensing content for 20 years, but I don’t work with fine art and the whole NFT thing confuses me. I can’t seem to reconcile NFTs with my understanding of intellectual property. When you say, “if you want to make an artwork that’s not your own, you need to go to the source to get permission,” it seems like you weren’t contemplating this scenario: What if someone is not the artist but owns the original work of art? They do own it, legally, though it’s not their creation. Can the owner of that piece of art make an NFT of it, which would obviously require making a digital reproduction? I have a cool original that I am thinking of NFT’ing (is that a word?).

We like to kick around the term “NFT-able” here at the ole ARS offices.

Rest assured that your scenario is something that we contemplate often. You’d be surprised how many people think that owning a Warhol gives them the right to make merchandise off of it! But no matter how many Warhols you own, if you want to make an Andy Warhol t-shirt, you’ve got to go through the magnificent Andy Warhol Foundation for the Visual Arts, which operates the artist’s estate, is the bearer of his copyrights, and uses the proceeds from both to fund wonderful exhibitions across the country.

Copyright is granted to a creator the moment the work is “ fixed in a tangible medium of expression .” No matter how many owners that work has, the copyright always remains with the artist (at least, it does until 70 years after their death).

If there are gray areas when it comes to the world of NFTs, they exist solely because there’s little case law there and because so many of these tokens are sold on the dark web, where any theoretical copyright violation would go unnoticed. What you propose is a little like someone thinking he can sell Hulu the rights to stream Scent of a Woman just because he owns the DVD.

TLDR: You own the work, not the copyright. Please don’t confuse the two, please do not make this particular NFT, and may I also suggest “tokenizing” for your verb form?

Artist Derrick Adams auctions an (authorized) NFT titled “Heir to the Throne”, commissioned by musician Jay-Z to celebrate the 25th anniversary of his debut album Reasonable Doubt at Sotheby’s. (Photo by Noam Galai/Getty Images)

I want to make an NFT using art from an album cover that I really like… is this allowed if I change it just a little bit, and does this same rule apply to music someone else has made?

Hmm, it depends. How much do you like it, exactly? You say you “really” like it but the affection has to be extremely strong for that to be legal…

Just kidding! No, you can’t do that. Please see my previous answer.

To get a bit further into the weeds of your question: While I appreciate the chutzpah, your inclination to change these pieces of intellectual property “just a little bit” is a red flag. When it comes to fair use—the term for acceptable appropriation of copyrighted material—we usually go for “ transformative ” changes. This term actually emerged from a 1994 lawsuit against 2LiveCrew for their sampling of Roy Orbison’s “Oh, Pretty Woman,” in which the Supreme Court ruled that, as a parody of the original work, 2LiveCrew’s at times disgusting song constituted fair use. That’s a pretty high bar to clear, and I assume you don’t want your new NFT or song to be a commentary or full transformation of the other song, since you only intend to change it “just a little bit.”

As this Pitchfork article unpacks , sites like WhoSampled and YouTube are changing the game when it comes to lawsuits from “ sample troll ” corporations, because having just a small piece of another song in your song can open you up to a lawsuit. All this has no doubt contributed to the skyrocketing values for music copyrights in recent years.

You should be very, very careful when it comes to sampling music. That said, you could always just call it a remix (though just a heads up: you’ll need permission for that, too).

Spencer Elden recreates his pose from the cover of Nirvana

Spencer Elden recreates his pose from the cover of Nirvana’s album Nevermind, shot when he was a baby, 25 years later. Courtesy of John Chapple.

I read that the baby from Nevermind is suing Nirvana and their associates. Why? How? I was under the impression that he liked the album cover.

This question isn’t really related to copyright as the lawsuit alleges that the cover is “ commercial child pornography .” But there are a number of other less bombastic issues tied up in this that we can explore.

The first is one of likeness rights, which bedevils many who write into this column , but it’s the age of social media so people are right to be paranoid. The photograph in question was taken by Kirk Weddle, now a co-defendant, who was friends with the father of former naked baby Spencer Elden. After a week of shooting babies, Weddle apparently called Rick Elden and said, “Wanna make 200 bucks and throw your kid in the drink?” Rick obliged, a dollar on a fishing line was superimposed on the photo, and here we are now, entertain us.

While it’s true that as a minor Spencer couldn’t consent to this, his father would have been able to . We’ve tackled the legality of album covers in the past and the contracts are often airtight . It’s unlikely that Weddle would have shot any of these children without making their parents sign over the likeness rights first.

We might also feel that as a participant in this work, Spencer should have the right to disown it, because artists can do so with their own work whenever they want to. Cady Noland famously had a painting of hers pulled from Sotheby’s not so long ago when its condition did not meet her standards. She did so thanks to the Visual Artists Rights Act of 1990 (VARA), which was probably inspired by Richard Serra’s Tilted Arc fiasco and allows copyright holders even greater control over their works.

Alas, Elden is not in fact the copyright holder, nor even really the subject of the photograph in question. This means he actually may have risked a lawsuit himself all those times he recreated the photo over the years , though I doubt Geffen Records would want to prosecute a guy who was clearly having fun with the whole thing. He even had the word “Nevermind” tattooed across his chest. “I always say, ‘[My penis has] changed, do you want to see it?’” he told CNN in 2011 .

It seems possible to me that the Nevermind baby may be chasing a dollar.

A still from 2021

A still from 2021’s Candyman. Photo: Universal Pictures.

I’m a visual artist who works with video and am currently workshopping a shot for shot remake of the new Candyman, which like so much in Hollywood these days isn’t quite a remake or sequel. We’re interested in playing up the importance of repetition (necessary in summoning the Candyman, of course). Can I anticipate copyright issues here?

My impulse is to say that this is fine, even though your question lacks some details I might have wanted if I were your lawyer (or, indeed, a lawyer of any kind). But you should know that, like a pair of teens going off to make out in a horror movie, you’re in dangerous territory.

As we have touched on in other iterations of this column , fair use is generally determined by four factors: the purpose of the new work (profit vs. education, etc.), the use of the work being copied (artistic vs. commercial, etc.), the amount of source material being sampled, and whether or not the new work might hurt the market for the original. You can’t sell a Superman coffee mug when Warner Brothers makes their own with more or less the same level of personal expression (none), but you can put the character in a painting if you’re Peter Saul , because you’re not targeting the comic convention crowd with that work.

The fact that you want to do your remake “shot for shot” gives me pause, because you’d be sampling the entirety of the movie—but then, that’s how those Raiders of the Lost Ark kids did it when they remade that movie with handheld cameras. I think the most important argument in your favor is that you’re not trying to hurt the market for the new Candyman . You’re presumably going to show this for free in an art gallery and sell expensive editions to collectors. That’s not the same audience, and it’s a completely different business model.

There are steps you can take to better your position. If you subtitle your own work After Candyman (2021), for example, that makes your intentions even clearer to director Nia DaCosta, producer Jordan Peele, et al. , should they ever find out about your version. Make sure your gallery also explores the legal ramifications before showing the work.

Your motivating principle is a noble one, and similar to the impulse that led Gus Van Sant to remake Psycho with Vince Vaughn in 1998 . Here’s hoping you have better luck than he did.

The main Ethereum NFT marketplaces include:

How to create NFTs

Creating your own NFT artwork, whether it be a GIF or an image, is a relatively straightforward process and doesn’t require extensive knowledge of the crypto industry. NFT artwork can also be used to create collectables like sets of digital cards. Before you start, you will need to decide on which blockchain you want to issue your NFTs. Ethereum is currently the leading blockchain service for NFT issuance.

Since Ethereum has the largest NFT ecosystem, here’s what you’ll need to mint your own NFT artwork, music or video on the Ethereum blockchain:

  • An Ethereum wallet that supports ERC-721 (the Ethereum-based NFT token standard), such as MetaMask, Trust Wallet or Coinbase Wallet.
  • Around $50-$100 in ether (ETH). If you are using Coinbase’s wallet you can buy ether from the platform with U.S. dollars, British pound sterling and other fiat currencies. Otherwise, you will need to purchase ether from a cryptocurrency exchange. A guide on how to buy cryptocurrencies using the most popular exchanges can be found here.

Once you have these, there are a number of NFT-centric platforms that allow you to connect your wallet and upload your chosen image or file that you want to turn into an NFT.

The main Ethereum NFT marketplaces include:

Here’s how the process works on OpenSea, currently the largest Ethereum-based NFT marketplace.

Clicking the “create” button (blue) will take you to a screen that asks you to connect your Ethereum-based wallet. Once you’ve entered your wallet password when requested it will automatically connect your wallet with the marketplace. You may have to digitally sign a message in your Ethereum wallet to prove you own the wallet address, but it’s just a case of clicking through to proceed.

The next step on OpenSea is to hover over “create” in the top right corner and select “my collections.” From there, click the blue “create” button as shown below.

A window will appear that allows you to upload your artwork, add a name and include a description.

This part is essentially just you creating a folder for your newly created NFTs to go in.

Once you’ve assigned an image for your collection, it will appear as shown below (blue). You’ll then need to add a banner image to the page by clicking on the pencil icon in the top right corner (red).

Your page should end up looking something like the image below.

Now, you’re ready to create your first NFT. Click on the “Add New Item” button (blue) and sign another message using your wallet.

You’ll arrive at a new window where you can upload your NFT image, audio, GIF or 3D model.

On OpenSea and many other marketplaces, you also have the option to include special traits and attributes to increase the scarcity and uniqueness of your NFT. Creators even have the opportunity to include unlockable content that can only be viewed by the purchaser. This can be anything from passwords to access certain services to discount codes and contact information.

NFTs allow you to buy and sell ownership of unique digital items and keep track of who owns them using the blockchain. NFT stands for “non-fungible token,” and it can technically contain anything digital, including drawings, animated GIFs, songs, or items in video games. An NFT can either be one-of-a-kind, like a real-life painting, or one copy of many, like trading cards, but the blockchain keeps track of who has ownership of the file.

Maybe don’t sell your friend’s art as an NFT

I get it — despite all the warnings about climate change, you or someone you know has big Scrooge McDuck-sized dollar signs in their eyes after realizing a pinch of blockchain is all you need to turn a JPG image into cold hard cash, and now you’re casting about for something — anything — to turn into an NFT while the initial gold rush lasts.

Then, you spot it: something that doesn’t exactly belong to you. You’re not going to sell that, right? And yet that’s kinda what indie game developer Jason Rohrer is attempting to do, according to Kotaku: sell NFT copies of 155 digital paintings that he originally commissioned for his game The Castle Doctrine as individual artworks online. Which. I mean maybe he’s legally got the rights, even though NFTs didn’t exist back then?

What’s an NFT?

NFTs allow you to buy and sell ownership of unique digital items and keep track of who owns them using the blockchain. NFT stands for “non-fungible token,” and it can technically contain anything digital, including drawings, animated GIFs, songs, or items in video games. An NFT can either be one-of-a-kind, like a real-life painting, or one copy of many, like trading cards, but the blockchain keeps track of who has ownership of the file.

NFTs have been making headlines lately, some selling for millions of dollars, with high-profile memes like Nyan Cat and the “deal with it” sunglasses being put up for auction. There’s also a lot of discussion about the massive electricity use and environmental impacts of NFTs. If you (understandably) still have questions, you can read through our NFT FAQ.

Except Rohrer isn’t even trying to pretend they’re his — he credits each artist on his new crypto gallery page, calling them his “personal friends,” and says he’s willing to “share” with them if they “bring in loads of auction money and back-end royalties.”

Some of his “friends” were not particularly happy about this level of generosity, according to Kotaku, and you should go read their biting responses in full. Here’s one to start:

Canabalt and Overland developer Adam Saltsman described the NFT auction as a “a lose-lose proposition for me in the short term.” ”Either Jason does more gross public shit using my art, or else I have to like. talk to Jason, and spend some of my life doing that, which also sucks,” Saltsman told Kotaku in an email.

At press time, it’s unclear if Rohrer realizes the irony in continuing to use the phrase “PROTECT WHAT’S YOURS” as his website header image. (He has removed some pieces from the site at the artist’s request, though.)

I have to admit, I’m curious: would you ever buy an NFT from someone who didn’t produce the art? Since an NFT is effectively a digital autograph, I’d much rather own one from the original artist.

Perhaps that’s why no one has yet purchased this NFT of this famous photo of the famous anonymous 4Chan post about how “literally anything can be art.” Then again, a framed copy of that post once sold for nearly $100,000.

How does the NFT work? The NFT is a “smart contract” that runs on the Ethereum blockchain. It’s an ERC-20 token, which means it can

What do NFT sales represent for you today? Is it still a minority source of revenue?

We’re still in the early days of our NFT business. We don’t break out revenue by category, but it is a small part of our overall sales today and we expect that to grow over time as more people learn about crypto collectibles. It will be interesting to see how much overlap there is between existing collectors who have bought Magic cards or other physical items on TCGplayer versus new customers attracted from outside the hobby because they are interested in digital assets like CryptoKitties (which has been great for us).


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