July 2021

Apes, Punks & Phunks: Adventures from the frontlines of the IP wars

Gather ’round kids, exciting and fascinating drama is afoot and you know you want to hear all about it. Assuming you are excited and fascinated by IP shenanigans, because really who isn’t right? While I want to just charge right into the theft and murder, oh yes dear reader there is theft and murder, I worry that I sometimes go to fast and leave people behind. So I’m just going to assume that you understand that copyright means the copyright holder (often the creator, but not always) retains all rights and no one else can do anything, and conversely public domain means no one retains any rights and anyone can do anything. Between those two extremes there’s a million miles of grey area which has been somewhat navigated by Creative Commons, who create copyright licenses that intentionally wave some rights while retaining others with the intention of fostering creativity and sharing. For example this blog post is published under a CC-BY license which means while I retain copyright or my words, I also allow anyone to use my words, expand on them or make derivative works and even sell that so long as they credit me as the original creator. Which is super totally cool. I’ve stumbled across my work in countless places, and people have ended up here because they saw something I wrote somewhere else and followed the breadcrumbs. Thanks Creative Commons!

OK, getting back to the juicy stuff. A very popular thing happening in the NFT space right now is for people selling large collectors of Avatars to grant commercial and derivative rights to anyone who buys those NFTs. I haven’t seen any using Creative Commons, because that would be easy and straight forward. Instead most often they have some hacky chopped together Terms of Service filled with rando copypasta from various other projects and it’s confusing AF. The gist being if you buy an NFT you can use it in other work and sell that work without issue. Essentially they are transferring the IP rights to the buyer, which has created a vibrant market for derivative works, and is helping fuel the overall growth of not just individual projects but also the entire NFT community and ecosystem. So this is a good thing.

But as we know, nothing is ever as straight forward as it seems. And this is where shit starts getting messy.

For a few months everyone was trucking along peacefully making derivative work of NFTs they bought that allowed such a thing, and everyone was happy and there were flowers and rolling fields of green grass and sunshine and then Taylor.wtf burned an ape. Taylor is an artist/musician/producer and also a shit disturbing agent of chaos. He’s a friend of mine and I say that as a high compliment and would encourage everyone reading this to aspire to such a description. In NFT parlance, “burning” something is to intentionally send it to a wallet that no one has access to—essentially removing it from circulation. When I say “an ape” I mean one of the Bored Ape NFTs made by the Bored Ape Yacht Club (arguably the hottest and fastest growing avatar collection at the moment). So he burned an ape and then put a video art project of that Bored Ape being set on fire up for auction on OpenSea (the largest NFT marketplace). At first people were just shocked that he’d burnt an ape (as they were trading for about $4k each at the time – though burning money is a long established form of conceptual art perhaps most famously employed by The KLF who literally burned a million GBP) but it got much more interesting when BAYC filed a DMCA notice and had the fire video taken down.

Still from Taylor.wtf’s Burning Ape

Their position was that as Taylor had burned the Ape before releasing the video, he was no longer the owner and thus no longer had rights to use the work. However! As they were not the owner anymore either it’s questionable about why they felt the need to intervene, which they clarified by saying they were doing so with respect to the current owner – and would do the same for any ape transferred from one party to another if the previous owner kept using it. However however! Since the ape was burned, by all understanding it has no owner, so whose rights were BYAC defending? No one came forward claiming to own that wallet and protesting, and no one could prove that the wallet wasn’t actually Taylors. Or, anyone else who might claim to own it. Point being, no one said “I own this thing and I object to how it’s being used by someone else.” Once this came to light it seems BYAC realized this was a huge steaming pile of shit they’d walked into, and cautiously backed out of it. The video was re-listed elsewhere without protest and remains online.

CryptoPunks

While Bored Apes are one of the hottest new Avatar projects, the grand daddy of them all is unquestionably Crypto Punks. It would just be bad form not to include them in this drama fest, luckily they are a magnet for it all. Let’s start with CryptoPunk #3100 – currently the highest selling Punk which sold earlier this year for 4,200 ETH or effectively just shy of $9 Million. There’s been much discussion about how an NFT is the token, and the image attached is just representative of the token – that is when you buy an NFT you aren’t buying that image so much as the digital token on the blockchain which is represented by that image. The conceptual artist Ryder Ripps decided to play with this idea by pointing out that the image representing the original CryptoPunks was a 24×24 pixel graphic entirely generated by a script. Ryder recreated #3100 by hand in 4000×4000 and minted it on several platforms. Same image on each, but each being a different token, different contract, and thus a different NFT. An interesting experiment that got much more interesting when Foundation was served with a DMCA notice by Larva Labs, the company who made CryptoPunks, and were forced to delist Ryder’s NFT. One might think “serves them right, that was obviously plagiarism” and many did in fact think that, but it seems many people don’t know about fair use and parody and this is where it got much more interesting- Ryder appealed the take down. You see, under the DMCA, a copyright holder can issue a take down notice to any service if they feel their IP is being infringed upon and the site has to immediately remove the infringing work, however if creator of the work that was taken down believes the action was erroneous, they can file an appeal and this puts the onus back on the company or person who filed the DMCA notice originally – and they now have 10 days to file a lawsuit supporting their claims – if they don’t they then are essentially conceding that they don’t have the legal position to support their initial action and the site in question is free to reinstate whatever was taken down. And again, because US Copyright law does specifically call out fair use and parody, Larva Labs backed down and Foundation has just reinstated Ryder’s Punks.

Rider Ripp’s CryptoPunk #3100

This is a pretty decisive victory and will likely be taken into account going forward, however there’s another very related situation at play that was going on before all this went down and came to a head before this was resolved. Enter the CryptoPhunks. Who make it very clear in their manifesto that this project is social commentary and a parody aimed at “flipping off the punks.” While Ryder essentially just scaled up the image of a punk in his work, the Phunks actually changed the art. Is it a significant change? That’s up for interpretation but when you are talking about a source image that is only 576 pixels to begin with, how much of a change is needed for it to be significant? Most notably, while all 10,000 CryptoPunks are facing right, the CryptoPhunks are facing left. While this was criticized as a “low effort rip off” by more than a handful of people – it’s an obvious enough difference to be immediately identifiable something that could not be said about Ryder’s Punks. But wait, there’s more! In addition to the flip, CryptoPhunks added a 1 pixel wide outline to the box the Phunk sits in, which is an unquestionable artistic change. Again, we’re talking about a 24×24 pixel image, so very subtle changes are actually pretty significant. You might think these changes made things easier for them, but you’d be wrong. The first take down of the Phunks happened almost as soon as they launched in what seemed to be an editorial decision on the part of OpenSea where they were listed. To their credit OpenSea has been working to take down fake accounts selling fraudulent NFTs and it’s unclear if they understood that CryptoPhunks was a stand alone project and not something misrepresenting itself as official, and this take down appears to be have preemptive and hasty.

CryptoPhunks

After much community uproar OpenSea reinstated the Phunks account and heated discussion started happening on Twitter which involved many CryptoPunk owners disparaging the Phunks and calling the project a “low effort rip off” or “blatant plagiarism.” Ironically, those are “low effort” criticisms that fall apart as soon as you read the project’s mission statement, because while it might not be something that is creatively appealing to everyone, it definitely has some thought and intention behind it. As noted earlier many people in this space don’t seem to understand how copyright or IP works or is applied, or the importance parody and fair use have in culture which can be seen in the reaction to the Phunks from the “NFT community” (if there is such a thing) at large. But things did not end there, OpenSea pushed back with several statements from employees on Twitter which imply they see derivative projects as somehow lesser than original works, and the longer term viability of the Phunks future remained in question. This didn’t slow sales at all, and it’s entirely possible that the vocal outrage from CryptoPunk owners actually served as marketing for the Phunks. Which, again, was kind of the whole point. The Phunks laid a trap and the Punks walked right into it. It kind of reminds me of a time when a music critic friend of mine got punched in the face by the guitarist of a band he’d recently accused of being brainless thugs. Anyway, having freshly filed their DMCA takedown against Rider Ripps, Larva Labs repeated the effort and sent a take down notice to OpenSea, who promptly removed the Phunks from their site. Again.

It’s unclear if the Phunks team submitted an appeal like Ryder did, though it seems pretty clear if they did Larva Labs would have to back down here as well. Guess we’ll see in a few days as that clock runs out. At the moment the collection is still not viewable on OpenSea, but they are live and for sale on Rarible and Cargo. And in case you’ve assumed that these are just cheap knock offs, let me assure you they are selling for very real numbers to very serious collectors who recognize the cultural significance of what’s playing out here. Longtime readers will know that the intersection of parody and copyright is of personal interest to me and I’ve have my own run ins with companies trying to shut down protected speech. In the 20 some years since that showdown with the Associated Press I’ve watched similar situations play out time and time again, and it’s amazing how poorly understood the law around this subject is – and not just from the companies involved. I saw a number of people in the CryptoPhunks community criticizing OpenSea for taking down the CryptyPhunks collection after they received the DMCA notice from Larva Labs. They were accused of “old thinking” and “clinging to stupid Web 2.0 ideas” which is honestly as ignorant as accusing the Phunks of being “low effort rep offs.” While it’s fairly well understood that the DMCA is a bad and broken law– it is still a law and companies operating within the US still have to abide by it regardless of how any individuals personally feel about it. But as Ryder illustrated, it can be fought and that’s what the Phunks should be doing. The idea of a company with no physical presence bound by no jurisdictional laws is certainly interesting, but it’s not reality and probably not a great idea if you dig deep enough into it. But these situations are most likely the beginning and not the end, as more NFT projects grant certain rights and others don’t, and companies and marketplaces try to figure out how to navigate through this mess I expect more showdowns in the future. In the end, this is all a result of creativity and challenging norms and expectations, pushing boundaries and seeing just what new things we can build on top of old structures before they crumble. I’m excited to watch it play out, as a spectator and participant.

On Selling Street Photography

(excerpted from a recent newsletter)
Selling photography is a weird thing. Well, selling street photography is a weird thing. Well, that’s a subset of being an artist and trying to sell art being a weird thing. For most of my life I’ve maintained an emotionally safe distance from anything I was doing for money. Even things I cared deeply and passionately about, it was still a project that many people were working on or someone else’s art or music that I was trying to help sell. So something selling or not, or getting funding or not, or seeing widespread adoption or not was a reflection of a collective effort and not of me personally. I’m sure at some base level thats why I spent so much of my life denying that I was an artist because then I would have to take ownership and responsibility for that art. Even when everyone around me was saying “why are you being such an idiot, of course you are an artist” and I would say “No I’m not, I’m just a guy who makes some stuff which sometimes hangs on walls in art galleries and is bought by art collectors” because that gave me distance.

As most of you know a while back I gave up on that facade and admitted that fine, ok, I am an artist. I think many people on this list have actually bought some of my photos and I’m eternally grateful for that, as it’s those kinds of “voting with your dollars” which is encouraging and helpful in realizing “ok, maybe this thing that means a lot to me also holds value to others.” Anyway, that’s a tangent. I was talking about street photography. Back when I used to have an art gallery the whispered secret was that photography wasn’t “real art.” I didn’t feel that way and I think the number of photographers I showed demonstrates that, but when talking to other gallerists and even some collectors it would often get to “well anyone could do that” which is such utter bullshit, but it’s interesting to pick apart why people feel that way. There’s a skill in painting that everyone understands – can you paint a photorealistic portrait? No? But someone else can? Ah, ok that’s a skill. But get into something more abstract or street feeling and you start getting that “anyone could do this” argument from detractors. Talk to someone who “doesn’t get art” about Pollock or Basquiat and inevitably they will go there. The difference between could do it and did do it is hard for some people to understand. It gets worse with photography because everyone has a camera, and while most can understand that just because they own a paintbrush doesn’t make them a painter that same courtesy isn’t often extended to photographers. Especially with mobile phones and filters, the skill of photography is easily written off as “right place, right time” luck and not attributed to skill as it should be.

But I’m rambling again. Selling photography. When I had an art gallery and would show photographers, often people would come in and be taken aback and ask “oh, is this a photogallery?” which they differentiated from an art gallery. Because they didn’t see photography as art, they saw it as fantasy. Which is really one of the major selling points for photography. The best selling photography is landscape work, followed by celebrity portraiture and maybe a bit of historical documentary work. This is all driven by daydreams and fantasy. Which are good things, I’m not knocking them at all. If you think of buying art because you are going to hang it on your wall and look at it all the time, then you think about how it’s going to make you feel. Landscape work just begs for daydreams. You can stare at a good landscape photo and marvel at the beauty of the place and think about what it smells like or feels like to be there, you can hope to see it one day with your own eyes. It’s a launchpad for a million dreams. Especially if your normal life is boring or stressful, having an incredible landscape photo to look at is endless mental escapes. Because it’s real. Someone stood there and took the photo, so conceivably you could go there too. You can’t get that with a painting, where just by the very nature of the thing you are getting the artist’s interpretation. But a photograph, that’s real! Celebrity work is similar in that it’s an instant reminder of someone you might look up to, or aspire to be like. A really good portrait conveys some intimacy and you can feel like you know that person by looking at it better than you would just seeing them playing some character in a movie or playing in the big game. You can look into their eyes and and imagine what they are thinking about, or imagine they are looking back at you. Historical work reminds you of a time and place that isn’t there anymore, maybe nostalgia or fantasy about “the good old days” or even just a chance to marvel at how far we’ve come since then. These are all elements that drive people to purchase photography.

Street photography doesn’t benefit from any of that. It’s often gritty. The feelings and emotions it evokes are not things most people want to be reminded of. The subjects are most likely strangers, and if you can look into their eyes and imagine what they are thinking it’s frequently not something you want to experience first hand. It’s voyeurism, letting the viewer experience a reality that is foriegn from them – usually for a reason. It lets them see and feel what another part of the world lives. This can be entertaining but also gripping. This is why street photography books do well, because you can look at it and then put it away where you don’t have to look at it. There’s a beautiful ugliness in it. Not all the time, but often. I was talking about this on twitter and I noted that even with my own work, the work without people sells far better than the work with people – though I get many more comments about the work with people. It’s an interesting dichotomy.

I think NFTs actually have the potential to change that up a bit because they sit somewhere between something on your wall and a book you can put away. You can make a virtual gallery to see things big and on the wall, but you can also just leave them tucked away in your wallet and support artists you like without thinking about where to put the art in your home. This is going to continue to evolve especially as photography is only just now starting to find a following in the NFT collector world, but we’ll see. I still have some 1 of 1 editions listed on FoundationKnown Origin and MakersPlace and I also just made a lower priced edition of 20 on Rarible, and still have a very few of the first edition I minted back at the beginning of the year.