Austin Powers Supporting Actor, Seth Green, has sparked a debate over who owns the commercial rights to use a Bored Ape Yacht Club NFT, after his Apes were stolen and sold to a third party.
Green tweeted on May 18 that four of his non-fungible tokens (NFTs), including BAYC #8398, Mutant Ape Yacht Club (MAYC) #9964 and #19182, and Doodle #7546, had been stolen after he visited a site. of phishing.
Green, creator of Robot Chicken and co-star of Family Guy, noted that someone with the pseudonym DarkWing84 had already bought the NFT from BAYC. Now, legal experts and community members are weighing the implications of the theft for BAYC’s intellectual property (IP) rights.
Well frens it happened to me. Got phished and had 4NFT stolen. @BoredApeYC @opensea @doodles @yugalabs please don’t buy or trade these while I work to resolve:@DarkWing84 looks like you bought my stolen ape- hit me up so we can fix it pic.twitter.com/VL1OVnd44m
— Seth Green (@SethGreen) May 17, 2022
Well folks, it happened to me. I have had 4 NFT stolen. @BoredApeYC @opensea @doodles @yugalabs please don’t buy or trade this while I work to figure it out:@DarkWing84 looks like you bought my stolen Ape. Contact me so we can fix it.
BAYC’s license does not stipulate cases of theft. It just says that “When you buy an NFT, you own the underlying Bored Ape, the Art, in its entirety.” Some believe this means that even if the NFT is purchased from a thief, the rights to use it transfer to the new owner.
Green is developing a TV series called White Horse Tavern, in which the Bored Ape in question appears, so if this interpretation is correct, he may not be able to go ahead with the series because he has lost commercial use rights.. An trailer of the series premiered on May 21 at the VeeCon NFT conference in Minneapolis, but a release date is unknown.
Santa Clara University technology and intellectual property law professor Eric Goldman told Buzzfeed News on May 25 that buyers are often legally protected if they inadvertently purchase a stolen item.and Coin Center communications director Neeraj K. Agrawal suggested that Green could be sued if he continues to use the BAYC in his program.
i’m hardly an IP expert but my understanding of the ape system is yes this is within the new holder’s rights
— Neeraj K. Agrawal (@NeerajKA) May 24, 2022
I’m no IP expert, but from my understanding of the Ape system, this is within the rights of the new owner.
Nevertheless, The Blockchain Association’s Chief Policy Officer Jake Chervinsky said that this interpretation is incorrect, and that a court would likely rule in favor of Green retaining legal rights to the BAYC image, adding “In other words, the code is not the law.”
If Seth can prove the NFT was stolen, it’s very unlikely a court would just throw up its hands & say “oh well, the thief gets the legal rights too”
In other words, code is not law
— Jake Chervinsky (@jchervinsky) May 24, 2022
If Seth can prove that the NFT was stolen, it’s highly unlikely that a court would give up and say “well, the thief has legal rights too.” In other words, the code is not the law.
green already hinted on Wednesday that he will go to court to recover the BAYC if DarkWing84 does not return it.
Anderson Kill law firm tech attorney Preston Byrne agrees that Green likely has a strong case for retaining ownership rights to the art. In a May 25 tweet, Byrne called it a “classic dirty hands scenario” because the BAYC was purchased from a thief with notice from the robbery victim.
Nemo dat quod non habet. The thief doesn’t get a good title to Seth Green’s IP, nor does anyone who buys it from said thief with notice. https://t.co/XHjKZaSbWT
— Preston Byrne (@prestonjbyrne) May 24, 2022
Nemo dat quod non habet. The thief does not have a good title to the intellectual property of Seth Green, nor does anyone who buys it from said thief with notice.
The BAYC in question was stolen and then sold on May 8, long before Green tweeted about his situation.. Goldman believes questions will be raised as to whether the blockchain’s immutable record can legally compensate for lack of notice.
DarkWing84 has not yet made any public comment on what will be done with the BAYC.
BAYC owners have long been the target of phishing scams similar to the one that hit Green. On April 25, a hacker took over BAYC’s Instagram account and posted a link to a phishing site that stole an estimated $2.4 million from BAYC.
The same thing happened a year earlier, in April 2021, when another hacker took over BAYC’s Instagram account, posted a link to a phishing site, and took about 100 BAYC.
The minimum price of a BAYC token on OpenSea is 91 ETH, valued at about $183,000 according to CoinGecko.
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