Copyright is the law of art. As the premier fine digital art marketplace in the blockchain ecosystem, the SuperRare community benefits from protecting the legal interests of all creators. This means ensuring that Artists understand that only authorized and original content may be minted and listed for sale on the SuperRare Labs marketplace. By respecting the rights of all creators, SuperRare Artists help ensure market confidence in the rarity and value of each SuperRare Item to the growing network of digital art collectors. These Copyright Guidelines and Policies provide an overview of acceptable marketplace minting conduct, a primer on some aspects of copyright law, and explain some of the unique copyright-related questions presented by NFTs and blockchain technology.

<aside> ⚠️ These Guidelines and Policies are not legal advice and should not be relied on as such. Reliance on this guide does not form an attorney-client relationship. Copyright law varies depending on the jurisdiction, but these Guidelines and Policies primarily characterize and rely on United States law unless stated otherwise. There is no guarantee as to the accuracy of the information herein. If you have a legal question about your rights as an Artist or Collector, especially a right concerning your right to mint artworks, a “fair use defense,” or a claim of copyright infringement, you should contact an attorney and not any members of the SuperRare team. For more information on copyright law, you can visit the website of the U.S. Copyright Office  or the World Intellectual Property Organization (WIPO).


What is a “Copyright”?

A copyright is a legal right granted to authors and artists for “original works of authorship.” In general, copyrights can be obtained in all sorts of creations, such as paintings, drawings, sculptures, poems, lyrics, musical compositions, sound recordings, audiovisual works, and – you guessed it – digital art. Copyright protection allows creators to market, exploit, and protect their creative efforts. A copyright owner has the right to prevent the unauthorized reproduction, display, distribution, and performance of original works of art. On the flip side, only the copyright owner can authorize such uses.

Obtaining Copyright Protection

Copyright registration is not necessarily required to obtain legal protection for digital work. Like magic out of thin air, copyright protection begins once the work is created. All that is required is that the work is “fixed” in some tangible medium to qualify for copyright protection. Generally, if you create an original digital work of art you have a copyright from the moment of creation so long as it is stored in some file format. Thus, you have the right to prevent the unauthorized use of your creation the moment it is complete.

Benefits of Copyright Registration

Although official copyright registration is not always required for legal protection, registering with your country’s copyright registration office may have very important benefits and can add value to your creative portfolio. For example, copyright registration is required before an infringement suit may be filed in federal court in the United States. Further, actual copyright registration opens up the door for statutory damages and attorneys’ fees if litigating an infringement lawsuit in the United States. For more information on copyright registration, visit the U.S. Copyright Office.

Copyright Ownership

Copyright ownership in a work vest initially in the author or authors of the work. Absent an obligation to assign, convey or transfer the copyright to someone else (i.e., a “work for hire” as discussed below), the Artist(s) enjoy sole copyright ownership for original digital creations.

Joint Works

When two or more authors create a single work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole (i.e., digital art with audio elements), co-authors are considered joint authors and have an indivisible and equal interest in the work as a whole. Thus, true joint authors by default are equally entitled to sales and royalties, unless the joint authors agree otherwise. Currently, SuperRare does not facilitate the joint-minting of digital artworks and expects its Artists to work with each other in sharing profits received from jointly created works. SuperRare is working on ways to increase the flexibility and modularity of its market mechanics and aims to support these types of features in the future.

Works Made for Hire

Certain types of specifically commissioned works, or so-called “works made for hire,” are an exception to the general rule that the Artist is the legal creator of the work. If a work was commissioned through a written agreement or made during the scope of the Artist’s employment, the party that hired the Artist may be considered both the author and the copyright owner of the work. Thus, an Artist could be in violation of an obligation owed to another by minting artworks legally considered “works made for hire.” Whether a work is considered a “work made for hire” depends on the facts and circumstances. If you plan on minting a work that was specifically commissioned by a written agreement or created during the scope of your employment, you should first determine whether that work is “work made for hire” and consider speaking to an attorney before minting.

Are Commissioned Works “Works Made for Hire”?

Not necessarily, but the rules may vary based on the jurisdiction. In the United States, artwork specially ordered or commissioned for use as a contribution to a collective work or as a part of a motion picture (or other audiovisual work) may be considered a “work made for hire” if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. Whether or not a work is legally a “work made for hire,” you may have assigned copyrights to the person who commissioned the work if you signed an agreement specifically stating so. Always be on the lookout for copyright-related terms whenever you are creating works for others and be sure that you are only minting works that you own the copyrights to. To learn more about “works made for hire,” visit the U.S. Copyright Office.

NFT Ownership ≠ Copyright Ownership

Ownership of a copyright is separate and distinct from ownership of any material object (i.e., a painting) or digital asset (i.e., a non-fungible token or “NFT”) in which the work is embodied or embedded. According to our Terms of Service, Artists do not lose copyright protection over works when they are sold on the SuperRare Labs marketplace unless the parties expressly agree in writing to convey a copyright interest as part of the transfer. As further explained in our Terms of Service, Collectors only have a property interest in lawfully purchased NFTs, but they do not have a copyright interest in the underlying artworks. The Artist reserves all exclusive copyrights to the underlying copyrights.

Can Artists Make Commercial Use of SuperRare Artworks After They Sell?