Copyright in characters is not a new concept but it can take interesting twists. We saw this recently when litigation over the Netflix movie Enola Holmes raised the question just how far the term of copyright in Sherlock Holmes could be extended. A strictly 2020’s application of the doctrine has emerged recently as comic book art meets blockchain technology.

Comic artists working on established titles typically have little to show for their work outside of fees. The leading publishers Marvel and DC jealously guard the rights to their characters in all forms of exploitation, no matter how substantial the contribution of individual artists to those characters’ identity. One exception has been that artist are permitted to retain their original drawings on paper for resale at comic conventions and the like.

Enter non-fungible tokens (NFTs). These are certificates of ownership of digital assets recorded on the blockchain. A number of comic artists saw an opportunity in this burgeoning market to sell their digital works. For the publishers, however, this was a bridge too far. Both DC and Marvel sent notices to their artists warning against sales of digital images featuring their intellectual property, whether in works created under commission for the publisher or original works.

This reaction is not at all surprising. NFTs are suddenly everywhere in the news, along with a sense that there is a great deal of money to be made with them. The giant companies that own DC and Marvel do not want to find themselves on the outside looking in. DC acknowledged as much in its letter to creators, which barred them from selling digital images “[a]s DC examines the complexities of the NFT marketplace and we work on a reasonable and fair solution for all parties involved.” The sale of paper artwork is a small, slow and manageable market that publishers know they can tolerate. The sale of NFTs is potentially disruptive, which leads them to be more protective of their assets.

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