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Fox Rothschild LLP
When new entertainment media emerge, a wave of litigation follows. Novel means of exploitation challenge lawyers to interpret contracts and statutes in contexts that were not originally contemplated. For example, when backend payments are calculated, it makes a substantial difference whether streaming revenues are treated like television or like home video. The emergence of NFTs is presenting a new set of issues.In November, 2021, famed director Quentin Tarantino announced his intention to auction off as NFTs portions of his original handwritten screenplay for Pulp Fiction. The NFTs would also include audio files of Tarantino’s commentary on the making of the film. Miramax, the film’s producer, responded quickly by filing a copyright and trademark action in California federal court.
Tarantino has moved to dismiss that lawsuit on the pleadings. According to the motion, Miramax never acquired any rights in the underlying Pulp Fiction screenplay. After pointing out that a screenplay is subject to a separate copyright from the film that is derived from it, Tarantino’s motion stresses that he specifically did not assign the screenplay to Miramax. The grant of rights in his original Miramax deal reserved “print publication (including without limitation screenplay publication, ‘making of’ books, comic books and novelization, in audio and electronic formats as well, as applicable)” (emphasis in original motion). This means that Miramax’s copyright extends only to the new matter added such as visual images, musical score and editing. Since the NFTs do not include any of that content, there was no infringement of Miramax’s rights.
The Miramax suit denies that the NFTs fall within the scope of Tarantino’s reserved publication rights. Miramax relies on the broad language of the granted rights, which included “all rights (including all copyrights and trademarks) in and to the film (and all elements thereof in all stages of development and production).” Although NFTs were in no one’s mind in 1996, the contract includes a grant of “all rights … now or hereafter known … in all media now or hereafter known.”
The case offers a concise look at competing views of the place of NFTs in the content ecosystem. Miramax wants the court to step back and see NFTs as another means of exploitation of elements of the film, like soundtrack albums, merchandising, or for that matter remake and sequel rights. Tarantino wants to zoom in on the particular content, of which the NFT is only a token of ownership. We can expect to see NFT rights specifically negotiated in entertainment deals, but expect to see a lawsuit or two as well.
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