A Joint Study by the USPTO and the Copyright Office on NFTs and Intellectual Property

At the request of Senators Patrick Leahy, D-Vt., and Thom Tillis, R-N.C., two members of the Senate’s intellectual property subcommittee, the U.S. Patent and Trademark Office (“USPTO”) and the Copyright Office have announced that they are launching a joint study of NFTs and their impact on intellectual property rights.

The Senators’ letter raised several questions to be addressed in the study, including whether there would be IP challenges with future applications of NFTs, how transferring an NFT impacts the rights associated with that asset, how licensing rights and infringement work and what IP protections are given to an NFT creator.

While an official timetable has not been set, in their letter the Senators requested that the study be completed by June 2023. In the meantime, three key cases The Andy Warhol Foundation v. Goldsmith (transformative fair use), Nike Inc v. StockX LLC and Hermes v. Rothchild (trademark infringement in the metaverse) are also likely to bring some clarity to the intersection of intellectual property law and NFTs. Moreover, having the two agencies working together offers the promise of a holistic look at the changing virtual landscape.

The USPTO and Copyright Office have agreed to consult with stakeholders in the private sector in the course of their research. This provides an excellent opportunity for interested parties from academia, fashion and entertainment to medicine and art, to weigh in with their unique expertise and concerns. Lutzker & Lutzker will be following each of these developments closely and invites impacted parties to reach out to us if they are interested in submitting comments when the specifics of the study are made public.