By Shanti Escalante-De Mattei
Yuga Labs, the parent company of Bored Ape Yacht Club, said in a new court filing that it does not have “copyright registrations” for the 10,000 images that constitution the successful NFT collection.
The new documents were submitted as part of the ongoing lawsuit between Yuga and artist Ryder Ripps, who used images from the BAYC collection for his own NFT collection, titled RR/BAYC.
“Counts 2 and 3 ask the Court to declare that Yuga Labs does not possess a copyright in the Bored Ape images,” the document submitted by Yuga Labs lawyers reads. “Registration of a copyright is not required to own one; it is required to file suit on one. The Court should not wade into whether Yuga Labs has a copyright in its Bored Ape images, because such an opinion would be merely advisory; Yuga Labs does not have a registered copyright, and there is therefore no imminent threat of a lawsuit for copyright infringement.”
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Last June, Yuga Labs sued Ripps, accusing him of false advertising, trademark infringement, and cybersquatting, among other charges. Ripps has denied the claims, saying that he has been transparent that the collection is intended to draw attention to his belief that the BAYC NFTs are threaded with alt-right, neo-Nazi symbolism, and challenge the belief that large PFP collections were protected by copyright. Further, Ripps and his lawyers have argued that RR/BAYC is a type of artistic expression in the form of appropriation art.
However, as legal experts have noted, Yuga did not sue Ripps on a copyright claim. A number of possible reasons have been suggested, from a lack of copyright registrations to Yuga wanting to avoid allowing Ripps to use a Fair Use/Freedom Of Speech defense.
During the NFT boom, the creators of Yuga Labs were the first to offer a novel perk: by owning an NFT, they claimed that copyright interest were also handed over, meaning if one owned a BAYC NFT, one could make anything from t-shirts to TV shows using the image of the Bored Ape that that person owned.
Comedian Seth Green, for example, claimed that he was developing a television show based on a Bored Ape that he owned, when his Ape was stolen in a hack in May 2022.
“I bought that ape in July 2021, and have spent the last several months developing and exploiting the IP to make it into the star of this show,” Green told Gary Vaynerchuck during a Vee-Con panel. “Days before he’s set to make his world debut, he’s literally kidnapped.”
Legal outlets, as well as mainstream entertainment and news publications, followed the copyright perk with interest, especially after Green’s Ape was stolen, calling into question if the IP rights to the Ape had transferred to the thief.
Yuga Labs, for its part, said that its copyright over BAYC images is solid, regardless of copyright registrations.
“Lack of federal copyright registration does not mean an entity does not own copyright. When provenance is documented, like with BAYC NFTs, copyright protection is automatic,” a Yuga Labs spokesperson told ARTnews in a statement.
Further, Yuga said there is “no confusion” about its NFT holders’ rights.
“Yuga Labs has released IP license and commercial rights to holders of the BAYC, CryptoPunks and Meebits NFT collections. Yuga maintains the underlying copyright for the artwork,” the spokesperson said.
It may seem odd that Yuga has stated to the court that it does not hold copyright registrations for the images, however, Ripps filed a counterclaim asking for a declaration from the court that Yuga Labs didn’t have any copyrights, which he believed to be relevant to his defense strategy. Yuga Labs then filed a motion to dismiss this counterclaim.
“[Yuga’s] argument to the court was ‘We brought an action for trademark infringement, not for copyright infringement, so it is not right for the court to reach out and determine whether or not we have copyright rights or not,’” explained Van Loon.
Yuga appears to be making a move to avoid the court ruling on whether large NFTs collections can copyrighted at all. Whether copyright applies to computer generated work or procedurally generated works, like BAYC and other large profile-pic NFT collections, is not settled legally.
If the courts decide that Yuga does not own copyrights to BAYC images, that could be legally problematic for the company, Erica Van Loon, partner and IP trial lawyer with law firm Nixon Peabody. told ARTnews.
“If there was some language in the terms of service or if copyright was advertised when offering the NFTs for sale, that could be a real problem for Yuga Labs,” Van Loon said. “There’s a number of claims that could be brought against them from people who bought their NFTs, such as false advertising and unfair competition.”
Ripps has claimed that Yuga cannot own copyright on the images.
“Yuga Labs lifted their Terms of Service from Suum Cuique labs, used a trendy (in 2021 NFT scam world) lie when they launched, tried to convince people that the value of NFT was being able to own Copyright, computer generated content is not allegeable for copyright,” wrote Ripps in an emailed statement, referencing Suum Cuique labs, an NFT company whose name he claims derives from a Nazi phrase that translates “to each his own.”
“The ape images are all too similar as well, which creates an additional problem for attempting to issue 10,000 copyrights to extremely similar images (some of which are identical apes),” he added.
[Editor’s Note: This article previously stated that Yuga Labs admitted that the 10,000 images in the BAYC collection have no copyright. It has been corrected to note that Yuga said it does not have “copyright registrations” for those images. It has also been updated with statements from Yuga Labs on the matter.]
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