Combating NFT Fraud – DMCA requests

A DMCA (Digital Millennium Copyright Act) takedown request is the first means of attack to remove copyright violations on the Internet.  Within the Web3 environment that often involves someone having taken an image that you created and minted a NFT from it without your consent.  The source might be a piece of digital art hosted on a site such as DeviantArt, a personal website or an existing NFT showcased on a marketplace such as OpenSea.  

The DMCA is based on US law but does apply in many other countries including the UK.  It instructs the site that is hosting the offending artwork to take it off-line.  A reputable host will comply with such a request because it is in their own interest to demonstrate that they are a showcase of original not fake artworks.  The copy could have been made through a simple copy and paste or recreated from scratch to imitate the original. The act of copying ‘by hand’ does not confer copyright on the new image.

It is up to the complainant to prove that copyright has been broken.  They will need to submit the url of the alleged copy together with a web reference to the original artwork.  As both will have timestamps relating to their uploading or creation (perhaps on a phone or computer) it will be easy to see which is the older.  More tricky is the process of determining proof of creation.  The complainant should be prepared to submit proof of how their image is the original.   Requests for DMCA takedown can be made directly to the DMCA but in some cases a host such as OpenSea will provide their own procedures for direct takedown requests.

In the case of an exact copy there is a good case to enforce takedown.  In the art world a new piece might be in the style of an original or a homage but not seen as an exact copy.  The exact point of difference, how many pixels to change before a copy becomes a new image in its own right is hard to judge.  Simply re-sizing the item is clearly not enough but flipping it to a mirror image?  In some cases the new ‘creator’ could argue ‘fair use’, for example to review the original art.  When making a takedown request the requestor should consider the relative chance of getting the takedown approved and the motives of the alleged copy.  If the copying site is obviously aiming for financial gain from the artwork or might be seen to be causing harm to the brand associated with the original the case is stronger.  The majority of requests for takedown will be handled by computerised processes and a multitude of requests from a single user, especially if the grounds are not obvious might lead to the engine blocking requests from that user.  This is turn can be overcome by written requests to the host but these will take longer and possibly be less likely to succeed. 

If a request is made and declined the author should consider what subsequent steps to take.  Any original request should be followed up by a ‘chasing’ email if no automated response is received.  This will provide a datestamp as to when a request was made that could be followed up in subsequent actions.

If the copy is not removed then any further actions will involve mounting work and costs.  These might not be worth the effort involved but a first step might be to have a solicitor draft and send a legal cease and desist letter.  Exposing the offender through websites, forums and social media will help establish your cause but take care that these could lead to counter-accusations, on-line activity or even legal action that will be hard to control.