BEEPLE, Everydays: The First 5000 Days, 2021, NFT, 21,069 × 21,069 pixels. Courtesy Christie’s Images Ltd.

A Proposed Artist’s Contract for NFTs

Fine Print BY Yayoi Shionoiri & Ryan Su from Sep/Oct 2021

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The USD 69 million sale of Beeple’s Everydays: The First 5000 Days at Christie’s in March catapulted the digital art community into the public eye and the mainstream art market. The basic concept behind NFT (non-fungible token) art is straightforward: information about the artwork—such as caption data, ownership data, and even supplemental information such as exhibition history—can be recorded onto the blockchain and looked up whenever an artwork changes hands to ascertain the artwork’s authenticity and provenance. While the technology underlying an NFT is mostly secure, aspects of buying and selling NFT artworks are still in development as artists and collectors navigate this fast-developing marketplace.

Platforms such as Nifty Gateway that allow for the purchase and sale of NFTs include code-based “smart contracts” in which some agreed-upon conditions have to take place before a transaction is allowed to occur. For example, one condition could be that the artist must be paid a resale royalty every time the work changes ownership, which protects interests of artists when, presumably, the prices of NFT artworks increase. However, during the NFT boom of 2021, artists, collectors, and auction houses may not have devised contingencies for such “smart contracts.” Additionally, “smart contracts” may not necessarily fulfill traditional contract formation requirements. In these circumstances, the only way forward is to rely on a physical set of terms “off-chain” (i.e. in writing) that supplements and governs the transaction and which is enforceable under the law. To that end, here we are offering a template for a simple “Purchase and Sale Letter Agreement for NFTs” that artists can modify and use.

NANCY BAKER CAHILL, Judicial from the Contract Killers series, 2021, animated AR artwork. Copyright and courtesy the artist.

We have taken inspiration from Seth Siegelaub’s and Robert Projanksy’s The Artist’s Reserved Rights Transfer and Sale Agreement (1971), which was formulated at a time when artworks were being auctioned off for astronomical sums in a rising market and artists had seemingly lost control of their market. The contract aimed to get a collector’s commitment to providing the artist a resale royalty should the artwork appreciate in value, and to bind subsequent purchasers to the same. The contract had to be physically pasted onto the artwork as a form of notice. In the current context, there are groundbreaking examples of artists collaborating with art lawyers including Nancy Baker Cahill’s NFT drop of the augmented-reality project Contract Killers (2021) with an agreement architected by Sarah Conley Odenkirk, and other art lawyers including Alana Kushnir and Megan Noh who are hard at work protecting artists’ rights in the space.

Our proposed “Purchase and Sale Letter Agreement for NFTs” uses the standardized language and non-negotiable terms and conditions of an “adhesion contract,” and confirms the parties’ mutual agreement so that it can be included on a webpage. It is intended to be applicable to a specific online transaction where “wet signatures” (i.e. in ink on paper) are not obtained. Alternatively, a modified version could include the normal fields for parties to affix their individual signatures at the end of the contract, so that it has more formal qualities of a legally binding contract. This may be particularly useful for jurisdictions whose courts may find that parties had not agreed to all the provisions in the adhesion contract because it was not signed.

The proposed “Purchase and Sale Letter Agreement for NFTs” would contain details of the artwork, the percentage of artist royalty for each resale, and the obligations and rights of the artist, and of the buyer. In particular, the copyright in the actual artwork does not transfer to the buyer and is retained by the artist, as should be the standard with physical/nondigital artworks.

Parties may also opt to include a choice of law and jurisdiction clause, which may be useful to ground jurisdiction and law to a place where the artist is familiar with, or whose courts may be particularly sympathetic to his cause. We often call this the “homeground advantage,” as it may be particularly onerous for an artist to enforce such a contract in a place foreign to them or which is governed by foreign law. It also bears stating that NFTs may be subject to regulatory controls in certain countries, and choosing the law and courts of such a place may render the contract void and could expose an artist to liability. A sample clause is as follows:

“Choice of law and jurisdiction. Parties agree that this agreement shall be governed by the law of [insert a national or state law] and parties hereby submit to the exclusive jurisdiction of the courts of [insert country or state].”

Today during the NFT boom, there is a wave of artists who have been using NFTs to authenticate and distribute their creations and also make statements on the systems of power, inequality, and the free market. At the same time, there are legions of scammers minting other people’s artworks as NFTs. Additionally, some collectors have experienced technical instability and difficulty with NFTs, including being shut out of the blockchain and NFTs sometimes disappearing from their digital wallets. These are just some of the problems faced by new entrants joining a quickly developing market. For these reasons, a standard contract would be good to protect all parties involved.

We would like to offer our simple contract, formulated during this pandemic between New York and Singapore, as an additional voice in this conversation to provide security to artists.

Purchase and Sale Letter Agreement for NFTs*

This letter agreement confirms certain details regarding the purchase by you, and the sale by me, of the NFT with the details below. By purchasing the NFT, you acknowledge and agree to the terms of this letter agreement.

1. Purchase and Sale

“Artist”

Name: __________
Contact me here: __________

Initial “Buyer”

Name: __________
Contact details: __________
Original date of transfer:__________

“Digital Artwork”

Title: __________
Year created:__________
Edition number / details: __________
First minted and issued on which platform (the “Platform”):__________
Copyright credit: © __________

Purchase price

Purchase price:__________
What currency: __________
Fees paid by Buyer (if any): __________
Payment method: __________

“Artist Royalty”

Percentage of each resale: ______%

2. What you receive as a Buyer.

As the Buyer of the Digital Artwork, you will be receiving a non-fungible token (an “NFT”), which is a record of ownership. The NFT is a unit of data stored on a blockchain that identifies or is otherwise associated with the unique digital asset, and proves that you own a digital asset. For clarity, you do not own the digital asset identified by the NFT, which is stored on storage networks such as the InterPlanetary File System.

3. Your rights as a Buyer. As the owner of the NFT, I grant you the following rights:

Right to access the NFT for display on specific channels or technology, such as your user profile on the Platform;
Right to publicly display the Digital Artwork for your personal use, including, without limitation on your social media channels, provided that you include the caption, including copyright credit, about the Digital Artwork;
Right to lend the NFT for inclusion in exhibitions or projects, provided that you agree to cause the borrowing entity to include the caption, including copyright credit, about the Digital Artwork; and
Right to resell the NFT in accordance with the provisions set forth below (the “Resale Right”).

Except in connection with the Resale Right, you, the Buyer, acknowledge that you are not permitted to reproduce the Digital Artwork for your commercial use, without my prior written consent (which may be withheld by me at my sole discretion).

Any and all intellectual property, including copyright, in the Digital Artwork remains with me as the Artist.

4. My obligations as the Artist. While I cannot assure that the Platform or the technology available to access and view the NFT will exist for eternity, I will use my reasonable efforts to ensure that the NFT remains accessible and viewable, and to keep you informed of these updates.

5. The Buyer’s Resale Right. Pursuant to your Resale Right, you are permitted to freely resell the NFT with the following conditions:

You commit to use the Platform, or another platform that has interoperability with the Platform, that allows for the Artist Royalty to be transferred to be on-chain to me; and
You resell the NFT with the terms and conditions set forth in this letter agreement and you cause the new buyer to agree to them.

6. Termination of this letter agreement.

If the NFT is no longer accessible or viewable, this letter agreement ends, and you and I no longer have any rights or obligations to each another in connection with the NFT.

Thank you for committing to, and believing in, my practice.

*This sample contract is not a substitute for seeking independent legal advice.

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