USA Law and Practice Contributed by: Jana Slavina Farmer, Adam Buchwalter and Dara Elpren, Wilson Elser Moskowitz Edelman & Dicker LLP
9. Artworks and New Technologies 9.1 NFTs NFTs, or non-fungible tokens, are unique digital assets that exist on a blockchain. Unlike cryptocurrencies such as Bitcoin or Ethereum, which are fungible and can be exchanged on a one-to-one basis, with NFTs each token is distinct and cannot be exchanged on a like-for-like basis. NFTs are often used to represent ownership of a specific digital artwork, music, videos, collectibles, and even virtual real estate. However, an NFT does not confer copyright or other intellectual property rights over the underlying asset. The exact rights associated with an NFT can vary depending on the terms set by the creator, and these rights should be explicitly outlined in any accompanying agreement or licensing terms. While the US does not yet have comprehensive NFT-specific legislation, NFTs are subject to a variety of existing laws and regulations, depending on their use and characteristics. Generative AI and copyright present emerging chal - lenges for the art market. In 2025, the US Copyright Office issued Parts 2 and 3 of its Report on Copyright and Artificial Intelligence. Part 2 confirmed that works generated entirely by AI without meaningful human creative control are not copyrightable. Part 3 con - cluded that the ingestion of copyrighted works during AI training implicates reproduction rights and that fair use does not provide a blanket defence for generative AI training. Multiple lawsuits addressing these issues are pending in the US courts. These developments are relevant to artists, collectors, and other art mar - ket participants, as generative AI tools raise questions regarding the authenticity, originality, and copyright status of AI-assisted or AI-generated artworks. 9.2 Counterfeit NFTs In the rapidly evolving world of NFTs, the issue of inauthentic or counterfeit tokens has become a sig - nificant concern. While NFTs are unique digital tokens recorded on a blockchain, this technology only veri - fies the creation and ownership of the token – not the legitimacy of the digital content it represents. As a result, counterfeit NFTs can and do circulate in the marketplace, often deceiving buyers and undermining trust in the system.
ing the scene is protected. Copying those creative choices without permission can be copyright infringe - ment. On the other hand, photographs taken in a purely mechanical or automated way, such as pass - port photos taken in a photo booth with no creative input, may also lack the originality required for copy - right. Use of another person’s photo-booth likeness, however, may implicate such person’s right to privacy or rights in publicity as discussed in 8.2 Legal Protec- tion for Different Types of Photographs . 8.2 Legal Protection for Different Types of Photographs Status of Photographs Not Protected by Copyright If a photograph lacks the necessary originality, it is not eligible for copyright protection. As a result, the gen - eral rule is that anyone can use, reproduce, modify, or distribute the photograph without seeking permission or paying royalties. However, other laws may offer pro - tection against unauthorised distribution and copying, although not under copyright law. For example, the use of a photograph could potentially raise concerns related to privacy, publicity rights, or trade mark law, depending on the content and context of the image. If a photograph depicts an identifiable individual, using the image, especially for commercial purposes, could potentially violate that person’s right to privacy. This is particularly relevant if the photograph was taken in a private setting or reveals private facts about the individual. The right of publicity protects individuals from the unauthorised commercial use of their name, likeness, or other recognisable aspects of their per - sona. Using a person’s photograph in advertising, merchandising, or other commercial contexts could infringe on the subject’s right of publicity, especially if the person is a celebrity or public figure. If a photo - graph includes trade marks, logos, or distinctive prod - uct packaging, using the image in a way that suggests endorsement, sponsorship, or affiliation with the trade mark owner could lead to trade mark infringement or dilution claims. Sometimes, the use of a photograph may be restricted by contract, such as terms of ser - vice for a website or agreements with the subject of the photograph.
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