Andy Warhol’s Prince Series and Issues of Transformativeness in Visual Works

Author: Brady Hagan

The Supreme Court will soon decide a case that, according to the appellants, could cause “a sea-change in the law of copyright” and cast “a cloud of legal uncertainty over an entire genre of visual art.” Indeed, the Court is expected soon to decide Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a case expected (and hoped by some) to refine the meaning of “transformative use,” a part of fair use analysis, as applied to visual works in copyright infringement lawsuits, an issue on which the Second and Ninth Circuits have split. The key issue in Goldsmith is whether a work of visual art was sufficiently transformative of a photograph it was based on to constitute fair use.

In 1981, photographer Lynn Goldsmith took a photograph of acclaimed pop artist Prince in her studio (the “Photo”). Later, in 1984, Goldsmith licensed the Photo to Vanity Fair for use as an artistic reference.¹ Unbeknownst to her, the artist hired by Vanity Fair was pop-art artist Andy Warhol. Vanity Fair’s license allowed it to publish an illustration of the Photo, once as a full page and once again as a quarter page, with co-attribution to Goldsmith. Vanity Fair’s use of the Photograph was thus authorized by Goldsmith, the copyright holder. However, Warhol would independently, and without license from Goldsmith, use the Photo as the subject matter of his Prince Series, rendering the image sixteen times in his characteristic style of sharp, contrasting colors and deep shading, typified by his works like Marilyn Diptych (1962) and Campbell’s Soup Can (1962). The most famous of the Prince Series is a work called Orange Prince, contrasted with the original photo below:

The Prince Series remained part of Warhol’s private collection until he passed away in 1987, at which point much of his life’s work was transferred to The Andy Warhol Foundation for the Visual Arts, Inc. (“the Warhol Foundation”), a non-profit whose mission is “the advancement of the visual arts.” In furtherance of its purpose, the Warhol Foundation donated the Prince Series for exhibition many times to such museum venues as the Museum of Modern Art, Tate, and The Andy Warhol Museum.

Goldsmith finally learned of the Prince Series after Prince’s death in 2016, when publisher Condé Nast (owner of Vanity Fair), published a commemorative edition magazine reflecting on the star’s life, and in which it used a print from Warhol’s Series, crediting the Warhol Foundation while failing to credit Goldsmith. Goldsmith notified the Warhol Foundation that she regarded it as being in violation of her copyright. The Warhol Foundation responded by suing Goldsmith in the United States District Court for the Southern District of New York, seeking declaratory judgment that the Prince Series works did not infringe Goldsmith’s exclusive rights in violation of the U.S. Copyright Act. Goldsmith countersued for declaratory judgment that the Prince Series did infringe her exclusive rights.

After reviewing the parties’ cross-motions for summary judgment, the District Court granted summary judgment to the Warhol Foundation and against Goldsmith, finding the Warhol prints constituted fair use of the original Photo, notwithstanding Warhol’s lack of license or permission for the use. In doing so, it relied on the general principle articulated by the Supreme Court in Campbell v. Acuff-Rose Music, Inc. that a work is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” 471 U.S. 539, 579 (1985). Perhaps most central to its holding, the District Court observed:

These alterations result in an aesthetic and character different from the original. The Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure. The humanity Prince embodies in Goldsmith’s photograph is gone. Moreover, each Prince Series work is immediately recognizable as a “Warhol” rather than as a photograph of Prince – in the same way that Warhol’s famous representations of Marilyn Monroe and Mao are recognizable as “Warhols,” not as realistic photographs of those persons.

Id. at 326. Accordingly, it held Warhol’s use was sufficiently transformative to support a finding of fair use as a matter of law.

Goldsmith appealed to the Second Circuit, which reversed the District Court. 11 F.4th 26 (2d. Cir. 2021). The main target of the Second Circuit’s reversal was the trial court’s holding that Warhol’s works were sufficiently transformative. “[A]s we have previously observed, an overly liberal standard of transformativeness, such as that employed by the district court in this case, risks crowding out statutory protections for derivative works.” Id. at 39. While it endorsed the District Court’s articulation of the general rule above from Campbell (a rule applied in the context of musical works of parody), the Second Circuit took a stricter view of transformativeness in this case, finding Warhol’s work retained and exploited too substantial a quantity and quality of the original photo’s features to constitute fair use such that it infringed Goldsmith’s copyright. The Warhol Foundation appealed to the Supreme Court, which granted certiorari. The United States Copyright Office filed an amicus brief in support of affirming the Second Circuit.

Until the Supreme Court renders a decision, we might make two observations. First, the primary disagreement between the Second Circuit and the District Court below fundamentally pertained to “how much” a creator can borrow from another’s original work, both in terms of quantity and quality, before it would no longer qualify as fair use, and also how much weight should be accorded to a purportedly new “meaning or message” in the derivative work. The Second Circuit essentially found the Prince Series used too much of the original Photo, notwithstanding the significant changes the District Court correctly identified as Warhol’s artistic contributions. It also found that the District Court overemphasized the new meaning or message, one of cultural commentary, that Warhol’s paintings add to the original image.

Second, “there is some inherent tension in the Copyright Act between derivative works, reserved to the copyright holder, which are defined in part as works that ‘recast[ ], transform[ ], or adapt[ ]’ an original work, and ‘transformative’ fair uses of the copyrighted work by others.” Id. at 39. In this author’s view, that tension is theoretically near its peak in visual art, simply given the nature of visual works as often fixed and defined images, not easily borrowed without clear duplication of the original’s inherent elements. Thus, it may be harder for a user of another’s photograph to prove fair use as compared to other artistic mediums, because such appropriation tends to require the direct duplication of fixed, identifiable elements of an image.

Along the same lines, the author might further observe that if the Second Circuit is affirmed, photographers rejoice, because it would become just that much harder for infringement defendants to prove fair use, even in cases of partial or elemental use of original photographs. Further, affirming the Second Circuit would (in theory) give prospective users greater incentive to seek licenses and paid permission from original creators, again, especially photographers, rather than run a then higher risk of litigation and liability for infringement. On the other hand, reasonable commentators tend to speculate that an affirmance of the Second Circuit could chill artistic endeavors. But this raises further questions of the likelihood of enforcement in private, non-commercial contexts anyway, and it arguably downplays the fact that transformativeness is only part of a more holistic fair use analysis. Transformativeness remains only a sub-factor of one of the four fair use factors.

Regardless of the outcome, we will wait eagerly to see whether the Prince prints are indeed transformative, or Warhol’s work infringes.

About the author: Brady Hagan is an associate at Gordon Rees Scully Mansukhani and a member of the Firm’s Intellectual Property Practice Group. Before entering private practice, he clerked for Chief Justice John D. Minton, Jr. of the Supreme Court of Kentucky, and then for Senior U.S. District Judge William O. Bertelsman of the Eastern District of Kentucky. Through his judicial clerkships, Mr. Hagan handled a variety of matters and gained insight into the inner workings of both state and federal courts.

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¹ As the term suggests, an “artistic reference” refers to a work or object upon which an artist bases his or her new work as an image reference.

SCOTUS to Review Intent Standard for Invalidation of Copyright Registrations

Author: Reid Dammann

Under the current version of the Copyright Act, registration of a copyright claim is not a condition of copyright protection. 17 U.S.C. § 408(a). However, a certificate of copyright registration is a prerequisite to bringing a civil copyright infringement action. See 17 U.S.C. § 411(a). By statute, a certificate of registration satisfies this prerequisite “regardless of whether the certificate contains any inaccurate information,” unless the following two-part test is met: “(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and (B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.” 17 U.S.C. § 411(b)(1).

Section 411(b)(2), in turn, requires that courts seek the advice of the Register of Copyrights before finding that a certificate of registration does not support an infringement action. Palmer/Kane LLC v. Rosen Book Works LLC, 188 F. Supp. 3d 347, 348 (S.D.N.Y. 2016) (“[C]ourts are in agreement that the provision is mandatory in nature[.]”) (citing DeliverMed Holdings, LLC v. Schaltenbrand, 734 F.3d 616, 623 (7th Cir. 2013) (“Instead of relying solely on the court’s own assessment of the Register’s response to an inaccuracy, the statute obligates courts to obtain an opinion from the Register on the matter.”)). In other words, a court must first obtain the Register’s guidance before finding that the provision of knowingly inaccurate information would have caused the Register to refuse registration. Although the statute by its terms requires a referral “in any case in which inaccurate information described under [§ 411(b)(1)] is alleged,” 17 U.S.C. § 411(b)(2), to protect against the potential for abuse inherent in this process, courts generally agree that they may first require the party seeking invalidation to establish as a factual matter that “(1) the registration application included inaccurate information; and (2) the registrant knowingly included the inaccuracy in his submission to the Copyright Office.” Palmer/Kane LLC, 188 F. Supp. 3d at 349.

Thus, before referring the issue to the Register, a court may determine whether the allegedly inaccurate information is, in fact, inaccurate. Where the factual record is insufficient to make such a determination, a court may choose to “await further factual development at the summary-judgment stage or at trial before issuing a referral.” King-Devick Test Inc. v. NYU Langone Hosps., 17-CV-930 (JPO), 2019 WL 3071935, at *9 (S.D.N.Y. July 15, 2019). If a court ultimately determines that a registration contains inaccuracies, the Register will then “advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.” 17 U.S.C. § 411(b)(2). The Court “must request a response from the Register before coming to a conclusion as to the materiality of a particular misrepresentation.” DeliverMed Holdings, LLC, 733 F.3d at 623-25 (discussing the “new procedure for courts confronted with a registration allegedly obtained by knowing misstatements in an application”).

Recently, the United States Supreme Court granted certiorari in Unicolors, Inc. v. H&M Hennes & Mauritz.¹ In this case, Unicolors submitted thirty-one fabric designs to the U.S. Copyright Office, but indicated that all thirty-one designs were published as a bundle, presumably, to save fees. However, the Ninth Circuit has held that a collection of works may be registered under a single-unit registration only when the works were first published in a singular, bundled unit. Here, Unicolors testified at trial that some of the designs included in the single-unit registration were published to different customers at different times, so its submission of all thirty-one images as a “collection” contained known inaccuracies. The District Court did not request the Register of Copyrights’ insight because it held that invalidation required a showing at trial that Unicolors intended to defraud the Copyright Office—which was not shown. The Ninth Circuit remanded the case to the District Court on the grounds that the District Court erred by imposing an intent-to-defraud requirement for registration invalidation and erred in concluding that Unicolors’s application for copyright registration did not contain inaccuracies despite the inclusion of confined designs. The issue presented to the United States Supreme Court, is whether 17 U.S.C. § 411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright registration.

As part of its argument, Unicolors asserts that the Ninth Circuit ruling creates a circuit split with the Eleventh Circuit, which holds that scienter is necessary. See Roberts v. Gordy, 877 F.3d 1024, 1029-30 (11th Cir. 2017) (holding that 411(b)(1) requires a showing of “intentional or purposeful concealment of relevant information” to render a registration invalid). Unicolors argues that the Eleventh Circuit in Gordy noted that the promulgation of the PRO-IP Act, which, according to the Gordy court, “amends section 411 of the Copyright Act to codify the doctrine of fraud on the Copyright Office in the registration process,” ostensibly reaching the opposite conclusion as the H&M panel. Id.

Unicolors argues that several opinions in the Ninth Circuit have implied that there is an intent-to-defraud requirement for registration invalidation. See L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 853-54 (9th Cir. 2012); see also Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1145 (9th Cir. 2003) (stating that inaccuracies “do not invalidate a copyright… [unless] the claimant intended to defraud the Copyright Office by making the misstatement”) (quoting Urantia Found. v. Maaherra, 114 F.3d 955, 963 (9th Cir. 1997)); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 486-87 (9th Cir. 2000).

Unicolors further argues that the Ninth Circuit’s supposed misinterpretation of 17 U.S.C. 411(b) contravenes legislative and administrative guidance, and that its position is in line with the relevant administrative and legislative bodies as well as the leading copyright treatise. According to Unicolors, these cited authorities correctly interpret that the PRO-IP Act codifies the doctrine of fraud on the Copyright Office. See U.S. Copyright Office, Annual Report of the Register of Copyrights, Fiscal Year Ending September 30, 2008 12–13 (2008) (“passage of the PRO IP Act strengthens the intellectual property laws of the United States” and specifically, “it amends section 411 of the copyright law to codify the doctrine of fraud on the Copyright Office in the registration process.”); see also U.S. Copyright Office, Annual Report of the Register of Copyrights, at 9 (2009) (Copyright Office further clarified that subsection (b) was added to section 411 “to create a new procedure for infringement actions [ . . . ] on issues that may involve fraud on the Copyright Office.”); 2 MELVILLE NIMMER AND DAVID NIMMER, NIMMER ON COPYRIGHT 7.20 (2018) (“[t]he legislative history for the PRO IP Act explains that the amendment aims to close the loophole whereby ‘intellectual property thieves’ argue ‘that a mistake in the registration documents, such as checking the wrong box on the registration form, renders a registration invalid and thus forecloses the availability of statutory damages’”).

Unicolors also contends that not only is there a split in the Eleventh Circuit, but also that there is a split in the Third Circuit because the Third Circuit requires an “intentional omission” of a material fact to invalidate, noting that “mere inadvertence,” is “insufficient.” See Mon Cheri Bridals, Inc. v. Wen Wu, 383 F. App’x 228, 232 (3d Cir. 2010) (citations omitted). Unicolors also posits that there is a further split in the Seventh Circuit, which has indicated, though not explicitly held, that 411(b)(1) requires a showing of fraud as well. In analyzing applicability of 411(b)(1), the Seventh Circuit in DeliverMed Holdings, LLC, 734 F.3d at 616, 625, fn.3, referred to the statutory provision as “the fraud on the Copyright Office inquiry” and weighed facts to determine if there was a knowing misrepresentation sufficient to seek to invalidation.

H&M’s position is that there is no circuit split, Roberts v. Gordy is an outlying case, and that this exact issue in this matter has already been presented to the United States Supreme Court, who previously denied certiorari. See Gold Value v. Sanctuary Clothing, 925 F.3d 1140 (9th Cir. 2019), cert. denied (no such intent-to-defraud requirement). Further, H&M argues that the statutory language is clear and that there is no need to consult legislative history. H&M argues that the plain meaning of the statute controls – stating “[a]s this Court has stated repeatedly, ‘when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extra-textual consideration.” Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1749 (2020) (citing Carcieri v. Salazar, 555 U.S. 379, 387 (2009)). The express languge of 411(b) states only that the “inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate[,]” and thefore, by the statutory plain terms, a higher degree of scienter—i.e., fraud—is not required. 17 U.S.C. § 411(b)(1)(A).

Intent-to-defraud requires that one willfully deceives, with intent to induce another to alter position to the other’s injury or risk. This could come in the form of an intentional misrepresentation, negligent misrepresentation, concealment, or a false promise. Courts generally provide that fraud requires a misrepresentation, knowledge that the misrepresentation is false, intent to deceive, justifiable reliance by the victim, and resulting damages, so it is plain to see that a decision by the United States Supreme Court in this matter effectively determines whether it will be more difficult to invalidate a copyright registration in future copyright litigation.

About the author: Reid Dammann is a partner in Gordon Rees Scully Mansukhani’s Intellectual Property Practice Group. His practice focuses on litigation matters involving copyright, trademarks, trade secrets, and patents, with a particular emphasis on software. Mr. Dammann is a registered patent attorney with an advanced dual degree in Computer Science and Electrical Engineering. Mr. Dammann’s biography can be found here.
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¹ 959 F.3d 1194 (9th Cir. 2020)

An NFT Called “Copyright Infringement”

Author: Hannah Brown

This story begins in 1982, when Andy Warhol met Jean-Michel Basquiat. Warhol and Basquait, two famous and successful artists, agreed to collaborate on an exhibition. In 1985, photographer Michael Halsband went to dinner with Basquait, which led to Halsband agreeing to photograph the poster for Basquait and Warhol’s collaborative to be titled “Paintings.”¹ Halsband then took this famous picture of Warhol and Basquait on July 10, 1985:

This photo has been referred to as “perhaps one of the most iconic portraits of the two artists.”²

Fast forward to 2019, and enter New York artist CJ Hendry. Hendry is known for her realistic and incredibly detailed drawings. Hendry created an illustration based on Halsband’s photograph. Halsband sent Hendry a cease and desist letter, claiming copyright infringement.³ Halsband demanded that Hendry destroy her work. Complying, Hendry spray-painted over the piece. A screenshot of Hendry’s Instagram story shows the final result:

In fact, Hendry recorded herself spray-painting over the image with black paint:⁴

But, where things get really interesting is what Hendry did next. She turned the video into an NFT, or non-fungible token, and explained infra, and put it up for auction. The NFT was titled “Copyright Infringement.” As of April 16, 2021, the NFT was listed for sale at $6,685 at SuperRare.com.⁵ A search of SuperRare’s website shows Hendry’s NFT is no longer for sale on the site. How much the NFT sold for, if at all, is unknown.

Before diving into the issue of NFTs and Hendry’s video, the first issue is, did Hendry infringe Halsband’s work with her drawing of the photo? The answer is likely yes. Hendry creates incredible and realistic drawings. A quick look at her Instagram account shows her true talent and the realistic and detailed art that she can create with (what appears to be) colored pencils.

While an image of Hendry’s drawing of Halsband’s photograph is not available on her Instagram account, the below screenshot of her Instagram story gives us an idea of what it must have looked like:

It appears Hendry more or less reproduced the photograph in her drawing. A copyright of a work of art may be infringed by reproduction of the object itself. Home Art Inc. v. Glensder Textile Corp., 81 F.Supp. 551 (S.D.N.Y. 1948) (oil painting reproduced in scarf); Leigh v. Gerber, 86 F.Supp. 320 (S.D.N.Y. 1949) (painting reproduced by publication without consent in a magazine).

After receiving the cease and desist letter, Hendry took to Instagram to express her frustration with Halsband and his legal team, saying that she looks up to Halsband, and wondering how her drawing could not be seen as a compliment to him and his work. As noted above in her Instagram post, Hendry notes she was never going to sell the piece and was never going to profit off of it. However, a person can be liable for copyright infringement even if they have not gained profits from the infringing work. A plaintiff may recover statutory damages “whether or not there is adequate evidence of the actual damages suffered by plaintiff or of the profits reaped by defendant,” Harris v. Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir. 1984), “‘to sanction and vindicate the statutory policy’ of discouraging infringement.” Peer Int’l Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 1990) (quoting F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 232 (1952)).⁶

Hendry could argue that her work was fair use of Halsband’s photograph under 17 U.S.C. § 107. In analyzing fair use, courts consider: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Id. But, as noted, Hendry did not take this issue to court and did not fight Halsband’s claim with a fair use defense. Instead, she destroyed the work and sold the video of her doing so as an NFT.

A brief explanation of an NFT is helpful. NFT stands for non-fungible token. NFTs are digital files, for example videos or digital art, and the buyer of the NFT gets to claim that they own the original digital work.⁷ NFTs are called “non-fungible” because they are unique, original, and cannot be interchangeable (unlike dollars bills or Bitcoin currency.) Your first thought may be: why would anyone ever pay for a digital work that they could download for free? You’re not alone in this thought, and as one author put it: “If all of this sounds bizarre, that’s because it is. The idea of paying for the symbolic ownership of a digital image that lives somewhere on the web and can be captured on a screenshot or right-click-download within seconds, is so alien it seems either idiotic or ironic.”⁸ But there is certainly a market for them, with videos and tweets selling for hundreds of thousands or millions of dollars.⁹

This leads to two other questions: (1) Does Hendry’s video of her painting over her drawing created using Halsband’s photograph, constitute copyright infringement? and (2) Can Hendry then copyright that video/NFT?

The answer to the first question is: maybe. While certainly Hendry’s video of her spray painting over her work is original content, it is likely that the video contains, at least in part, an image of Halsband’s copyrighted photograph (see the image above showing the drawing as Hendry begins to paint). However, it is also possible that her use of the photograph in the video as a whole was de minimis. “For an unauthorized use of a copyrighted work to be actionable, the use must be significant enough to constitute infringement.” Newton v. Diamond, 388 F.3d 1189, 1192–93 (9th Cir. 2004). “Even where there is some copying, that fact is not conclusive of infringement. Some copying is permitted. In addition to copying, it must be shown that this has been done to an unfair extent.” West Publ’g Co. v. Edward Thompson Co., 169 F. 833, 861 (E.D.N.Y.1909). If Hendry created a lengthy video of the spray painting, and the photograph was only in a small portion of that video, it is possible that this would not constitute infringement if her use of the photo was minimal when looking at the video as a whole.

The answer to the second question is: the NFT likely meets the criteria for copyrightability, but Halsband would probably object to the NFT becoming copyrighted. To be copyrightable, a work must be original and fixed in a tangible medium of expression. Hendry’s video of herself is original content (non-fungible literally means original and unique). But, the video would include Halsband’s copyrighted image. A copyright including another copyrighted image could lead to issues. Indeed, Hendry even titled her work “Copyright Infringement”!

In an analogous situation: a person cannot copyright a video of themselves if that video contains another’s copyrighted song. You may have heard of Nathan Apodaca, better known as 420Doggface208, or the man who went viral while skateboarding, drinking juice, and listening to Fleetwood Mac. Apodaca attempted to mint the video of himself as an NFT. But, because the video contained copyrighted material, i.e. the song, Stevie Nicks allegedly would not agree to Apodaca creating an NFT featuring her song.¹⁰

In fact, Halsband probably could have objected to Hendry making the video into an NFT, and profiting off of it, in the first place, due to use of his photograph. Halsband had sent Hendry a cease and desist letter already, and nothing would have stopped him from doing so again, this time requesting she desist from selling the NFT in an auction. Certainly, the point of Hendry’s NFT was to destroy what Halsband deemed an infringing work, and the NFT contained an image of that work. But, as noted above, Halsband may lose due to the de minimis defense.

With NFTs becoming more and more popular and profitable, this leads to an important piece of advice for anyone looking to create an NFT: consider whether your NFT is using another’s intellectual property. This could be use of a copyrighted image or even a song within the NFT. There does not appear to be any intellectual property requirements for creating an NFT; the creator does not have to certify that their work is completely their own creation.¹¹ There is no agency needed to “approve” or “register” the NFT like is done when one seeks to register a copyright or trademark. It is important for creators of NFTs to review their work to ensure it is their original content, or that they have the permission from the author of the work, and that nothing they are putting online will get them in trouble.

About the author: Hannah Brown is an associate and member of Gordon Rees Scully Mansukhani’s Intellectual Property Practice Group, specializing in trademark, copyright, and patent litigation. She is a former law clerk to the Hon. Janis Sammartino and Hon. Cynthia Bashant of the U.S. District Court, Southern District of California.
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¹ https://www.swanngalleries.com/news/photographs-and-photobooks/2020/06/the-making-of-a-portrait-michael-halsbands-photograph-of-andy-warhol-and-jean-michel-basquiat/
² https://www.swanngalleries.com/news/photographs-and-photobooks/2020/06/the-making-of-a-portrait-michael-halsbands-photograph-of-andy-warhol-and-jean-michel-basquiat/
³ https://hypebeast.com/2021/4/cj-hendry-copyright-infringement-nft-auction-superrare-release
⁴ https://hypebeast.com/2021/4/cj-hendry-copyright-infringement-nft-auction-superrare-release
⁵ https://hypebeast.com/2021/4/cj-hendry-copyright-infringement-nft-auction-superrare-release
⁶ This would be different if Hendry were fighting a criminal copyright infringement claim. To prevail on an allegation of criminal copyright infringement, a plaintiff must establish “infringement, that the infringement was willful, and that it was engaged in for profit.” Mattel, Inc. v. MGA Ent., Inc., 782 F. Supp. 2d 911, 1042 (C.D. Cal. 2011) (quoting United States v. Bily, 4066 F. Supp. 7266, 733 (E.D. Pa. 1975)).
⁷https://www.theverge.com/22310188/nft-explainer-what-is-blockchain-crypto-art-faq
⁸ https://www.wired.com/story/nfts-boom-collectors-shell-out-crypto/
⁹ .
¹⁰ https://www.lamag.com/article/nft-law-copyright/
¹¹ https://help.foundation.app/en/articles/4742869-a-complete-guide-to-minting-an-nft#:~:text=Mint%20your%20NFT%3A%20Confirm%20that,the%20same%20with%20your%20wallet.