Earlier this month Seth Green was scammed out of four NFTs, including a $200,000 Bored Ape Yacht Club NFT. There’s more at stake than just Green’s money. That Bored Ape was meant to star in an upcoming TV show Green is developing, but because IP rights to the cartoon ape are contingent on owning the NFT, there’s open question as to whether Green can go ahead with the sitcom.
“I bought an ape in July of 2021 and have spent the last several months developing and exploiting the IP to make it the star of this show,” Green said on Saturday at VeeCon, an NFT conference, moments after revealing a debut trailer for an upcoming show that will star NFTs from various collections. “Then days before… he’s set to make his world debut, he’s literally kidnapped.”
Green’s Bored Ape was phished out of his account on May 8, according to records on NFT marketplace OpenSea. The scammer then sold the NFT two hours later to a user named DarkWing84, who paid $268,000 for it. Green, who got phished by trying to buy NFTs from a fake site, has repeatedly tried to get DarkWing84’s attention on Twitter, seemingly to no avail.
BuzzFeed on Tuesday ran a story that raised the possibility that Green could no longer run the show as is, with litigation attorney Daniel Dubin telling the publication that the stolen NFT’s current owner could “cause trouble” for Green if he wanted.
Yet Green was relaxed at the conference, laughing about the matter alongside VeeCon host Gary Vaynerchuk. He confidently rejected claims made on Twitter that the show can no longer move forward. “Not true since the art was stolen,” he tweeted. “A buyer who purchased stolen art with real money and refuses to return it is not legally entitled to expoitation usage of the underlying IP.”
Nemo dat quod non habet. The thief doesn’t get 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
NFTs have three different IP models. On one side are collections where the creators hold all the rights, and on the other end are “CC0” NFTs where the art and brand are in the public domain, free to use by anyone in any way. Then there’s the Bored Ape Yacht Club model, where BAYC creators Yuga Labs own the brand, but holders of the NFTs can use their specific apes for any commercial purposes they wish.
Bored Ape NFT owners have used their characters to create a coffee brand, a band, and one is even getting a book written by best-selling author Neil Strauss. What happens with Green’s case could set a precedent, legal or otherwise, for how similar matters are resolved moving forward.
“Looking forward to precedent setting debates on IP ownership & exploitation, having spent 18 years studying copyright and the industry laws,” he tweeted Tuesday in response to BuzzFeed’s story. “I’d rather meet DarkWing84 to make a deal, vs in court.”
The two hours in between the NFT being stolen from Green’s wallet and sold on OpenSea may end up being crucial, as the case could come down to whether or not DarkWing84 bought the NFT knowing it had been obtained fraudulently from Green.
“The thief doesn’t get good title to Seth Green’s IP, nor does anyone who buys it from said thief with notice,” tweeted Preston Byrne, a partner and IP specialist at law firm Anderson Krill. “I just don’t see how anyone could bring a lawsuit vs Seth Green for infringement and win under the circumstances,” he added.
The phishing scam that Green fell victim to didn’t just rob him of his BAYC, but also two Mutant Ape Club NFTs (worth $40,000 each) and one Doodle (worth $24,000).
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