from the that's-not-how-any-of-this-works dept
Miramax, the film studio originally founded by Harvey Weinstein before being sold to Disney, then spun out, and currently owned jointly by a Qatari media company, beIN, and ViacomCBS, is in the news for suing Quentin Tarantino over his collection of NFTs about Pulp Fiction — one of Miramax’s biggest hit films in the 90s, and the one that put Tarantino on the map. Like many other content creators, Tarantino is exploring the NFT space, and his experiment is actually somewhat interesting. It’s using a modification of typical NFTs, where some (or all) of the content remains “access controlled” and only available to the purchaser. In other words: it’s DRM’d NFTs, which seems to miss the entire point of NFTs, which is creating a new scarcity of ownership without the scarcity of content access. But, hey, it’s Hollywood, so restricting access and using DRM is kind of in their DNA.
That said, the NFTs are supposedly handwritten bits of the original Pulp Fiction screenplay. From the page:
The NFT collection contains the handwritten, never-before-seen screenplay of Pulp Fiction, one of the most influencing artworks of modern film. Each NFT consists of a single iconic scene, including personalized audio commentary from Quentin Tarantino. The collector who will purchase one of these few and rare NFTs will get a hold of secrets from the screenplay and a glimpse into the mind and the creative process of Quentin Tarantino. The owner will enjoy the freedom of choosing between:
1. Keeping the secrets to himself for all eternity
2. Sharing the secrets with a few trusted loved ones
3. Sharing the secrets publicly with the world
Anyway, the complaint makes a bunch of claims that don’t seem to be supportable. Specifically, it argues (1) breach of contract (2) copyright infringement (3) trademark infringement and (4) unfair competition. The breach of contract claim seems weak. Part of that dispute is that when he sold the movie to Miramax the contract did say that Tarantino reserved the rights to “screenplay publication” himself — and Tarantino’s lawyers contend that that’s all this is. Miramax says that an NFT does not constitute publication — which… is weird? Because it certainly seems like it should?
But the bigger issues are the copyright and trademark claims, which really don’t seem to be based on an understanding of how NFTs work. Here’s the basics of the copyright claim:
The finished motion picture Pulp Fiction and all elements thereof in all stages of development and production are all original works containing copyrightable subject matter for which copyright protection exists under the Copyright Act, 17 U.S.C. ? 101, et. seq. Except for Tarantino?s limited set of Reserved Rights, Miramax is the exclusive owner of rights under copyright in and to the motion picture Pulp Fiction, and all elements thereof in all stages of development and production. Miramax owns copyrights in and to Pulp Fiction (and, pursuant to the Original Rights Agreement and the Tarantino-Miramax Assignment, ?all elements thereof in all stages of development and production?), including, without limitation, the registered United States copyrights thereto with U.S. Copyright Office registration numbers PA0000704507 and VA0001224051, and the copyrights assigned to Miramax in the Tarantino-Miramax Assignment and the B25 Instrument of Transfer, which are recorded with the U.S. Copyright Office as document numbers V2917P169 and V3005P270, respectively.
Through Defendants? conduct alleged herein, including Defendants? sale of rights relating to Pulp Fiction, and preparation and reproduction of derivative works based on Pulp Fiction without Miramax?s permission, Defendants have directly infringed Miramax?s exclusive rights in Pulp Fiction and the elements thereof in violation of Section 501 of the Copyright Act, 17 U.S.C. § 501.
But… no. That’s not how this works. The NFT is just a database entry in a distributed ledger. It’s not a “derivative work.” There’s no copyright-covered content in the NFT itself. The NFT will point to some content, but it seems ridiculous to argue that the content it points to is infringing either. It’s going to be a scan of just a small part of the script that Tarantino wrote (and again, his contract explicitly says he can publish the script). So, what copyright is being infringed here? There is some new content — the “secret” content — as well, but from the descriptions, that’s just Tarantino explaining something about the scenes in question. And he’s allowed to do that.
So, I don’t see what copyright could possibly be infringed here. Even if there were some way you could argue that a link to a scan of a few pages of a handwritten movie script somehow implicates the copyright in the movie (which it cannot), there’s still an incredibly strong fair use argument (but, again, it shouldn’t even get there).
Indeed, to highlight the lack of any copyright infringement here, law professor (and NFT conceptual artist) Brian Frye created (and then quickly sold) his own Secret Pulp Fiction NFT, noting that:
Ownership of this NFT constitutes ownership of certain secret and confidential thoughts I created about the movie Pulp Fiction (1994), which was directed by Quentin Tarantino. The owner of the NFT will have exclusive access to those thoughts, which they may use in any way they like.
Basically, anyone is allowed to sell their “secret” thoughts and ideas about the movie Pulp Fiction, including Quentin Tarantino, and it doesn’t violate Miramax’s rights.
As for the trademark claim, it too seems like a huge stretch. I looked up the trademark registration and it covers certain classes, including magnets, ornamental pins, calendars, posters, tote bags, wallets, cups and mugs, t-shirts, sweatshirts, hoodies, fashion garments, jackets, blouses, pants, caps, hats, socks, ties, Halloween and masquerade costumes, costumes for children’s use, action figures, bendable toys, jigsaw puzzles, puzzle games, collectible toy figures, rubber character toys, and a few more such things.
I don’t see how a link in a distributed ledger database is covered by any of those. Nor do I see how a scan of a handwritten part of a script is any of those. That’s not how trademark works. On top of that, where is there likely to be any confusion here? The sale is quite clearly coming from Tarantino, not Miramax, and despite the complaint saying that consumers will believe this whole thing is sponsored by Miramax, there’s no reason to believe that’s actually true.
All of this seems like typical Hollywood studio overreach, demanding ownership over things they don’t have control over, just because they have lawyers who think they can get away with it.