USA – FLORIDA Law and Practice Contributed by: Diego R. Figueroa Rodríguez, DLA Piper
9.2 Counterfeit NFTs The US Copyright Office conducted a study in 2024, concluding that current intellectual property laws are adequate to address NFT-related infringement. Simi - lar to acquiring physical art, buying an NFT does not automatically grant copyright ownership of the under - lying artwork unless it is explicitly transferred. The NFT market could be speculative, highly volatile and prone to fraud, with counterfeit or inauthentic NFTs frequent - ly appearing and flooding popular marketplaces. Although blockchain technology records the owner - ship of NFTs, it does not prevent someone from tak - ing another person’s artwork, minting it as an NFT and selling it as genuine or from creating and selling identical versions of popular NFT collections. While blockchain can verify a token’s uniqueness, it cannot guarantee that its content is not stolen or copied. In fact, a staggering proportion of NFTs minted using free tools have been found to be plagiarised or spam. Technically, a counterfeit NFT is authentic because it exists on the blockchain, but it is fraudulent because it misrepresents the original creator or ownership. To avoid buying inauthentic or counterfeit NFTs, buy - ers are encouraged to use reputable marketplaces, verify the creator’s identity by checking for verification marks and social media links and ensure that the con - tract address matches the official collection. Addition - ally, when purchasing from a collection, buyers are: • encouraged to review the trading history, volume and number of owners; and • assess previous sales and whether the price seems reasonable. 10. Gifts, Donations, Trusts and Inheritance 10.1 Planning for Generational Transfer of Artworks The effective planning and management of genera - tional artwork transfer in Florida, as in other jurisdic - tions, primarily involves selecting appropriate legal structures, conducting a comprehensive inventory and valuation and formulating optimal tax strategies that have been outlined below.
• Legal structures: Artwork may be placed within a trust (revocable or irrevocable), a limited liability company (LLC), or entities such as family limited partnerships. Additionally, according to Florida law, a personal property memorandum that includes a written list of specific artworks and their desig - nated recipients may be incorporated by reference into a will. • Inventory: Maintain a thorough record for each piece, including photographs, detailed descrip - tions, certificates of authenticity, receipts, insur - ance appraisals and provenance information. • Valuations: The Internal Revenue Service (IRS) requires qualified appraisals for any artwork valued above USD5,000 for purposes related to tax trans - fers or donations. • Tax implications: While Florida imposes no income, gift, inheritance or estate taxes, various federal tax considerations apply, including step-up in basis, capital gains for collectables and charitable dona - tion procedures. For more details, please refer to the USA Practice Guide. Further considerations include communicating and documenting intentions with heirs and beneficiaries, appointing an executor or trustee with expertise in art collection management, maintaining adequate insur - ance coverage and ensuring beneficiaries have the financial means to support proper storage, insurance and conservation. Given the complexity inherent in this subject, seek - ing guidance from specialised art estate planners and attorneys is encouraged. 10.2 Legal and Fiscal Issues in Artwork Succession Intestate Succession If there is no will, property (including artworks) is dis - tributed according to Florida’s intestacy law (Florida Statutes 732.101-111). This can result in heirs unin - tentionally sharing ownership, possible forced sales and disagreements over value. Important points to consider when managing collections include: • courts may order partitions if heirs cannot agree on matters such as storage, insurance or sale of the artworks; however, under the Florida Uniform
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