Since last year’s NFT craze, it is customary to mint unique NFT’s from original storylines and film characters as cross promotion of new and upcoming films. However, misconceptions around NFT rights (being seen as a new form of intellectual property which they aren’t), has given some individuals impetus to mint pre-existing IP rights that don’t belong to them or that have been assigned to movie studios. This is what Miramax contends Quentin Tarantino did when he launched a series of NFT’s from handwritten portions of his original screenplay, Pulp Fiction.
On a first sight, it may seem that Miramax should already have all the rights in any NFT a filmmaker, screenwriter, actor, composer, etc. could mint from Miramax’ movie catalogue, because of the way licensing works in the movie industry where all individual rights must be assigned to a producer and ultimately the studio. Otherwise, the movie industry would collapse if any of the thousands of creators responsible for putting a movie together came to claim control over derivative rights, or merch in the movie (which is what NFTs are in general). The fact that license agreements were drafted decades or a century before NFTs were invented doesn’t change anything with respect to IP rights. Where a filmmaker also happens to be the producer of a given movie, however, things tend to be more nuanced, and this is what the lawsuit filed last November by Miramax will hopefully clarify for all.
The first place to look when faced with such a lawsuit is the license agreements.
In the case at hand, Tarantino granted to Miramax “all rights (including all copyrights and trademarks) in and to the Film (and all elements thereof in all stages of development and production) now or hereafter known including without limitation the right to distribute the Film in all media now or hereafter known (theatrical, non-theatrical, all forms of television, home video, etc.)… In return, the agreements granted Tarantino reserved rights to soundtrack album, music publishing, live performance, print publication (including without limitation screenplay publication, ‘making of’ books, comic books and novelization, in audio and electronic formats as well, as applicable), interactive media, theatrical and television sequel and remake rights, and television series and spinoff rights.”
Given that Tarantino launched an NFT collection consisting of digital images of portions of the handwritten version of the PULP FICTION screenplay, the filmmaker appears to be well within his rights based on the license agreements and the contract clearly states that he has “reserved rights in print publication including without limitation screenplay publication in electronic formats.”
“Electonic formats” encompass NFTs, so it wasn’t necessary to look into the future and draft a crystal-ball clause in the line of “any electronic formats existing and yet to be invented” although it may be a good idea to draft such a clause for future projects to avoid being sued every time an innovation occurs.
In this case, based on what we know so far, I see zero breach of contract and no infringement whatsoever of Miramax’ rights.
Miramax will argue that NFTs fall under “marketing or derivative rights” which is a long shot, because Tarantino was not marketing the movie per se, but the NFTs he launched of the screenplay as permitted by the license agreements. Moreover the digital images consisted of Tarantino’s own handwriting which is unique to the filmmaker as a human being and Miramax clearly doesn’t own. Even if such a clause existed, it would be null and void. It would shock anyone’s consciousness for a movie studio to go as far as appropriate a creator’s handwriting in a work that belongs to the creator as per specific license agreements. It would be different, short of appropriation, if handwriting were used to infringe upon the studio’s rights (a bit like NFTs are used to bypass IP rights in different scenarios), however in his case, screenplay publication rights are unambiguously Tarantino’s while his handwriting is what confers the NFTs their unique and distinctive character beyond the actual movie.