NFTs, or non-fungible tokens, have gained massive popularity in recent years, touching industries from fashion to video games. They are non-fungible, meaning each one is unique, and their status as a token indicates they stand in for something else – i.e. they’re linked to a specific benefit or good, but the token itself is just a certificate of that. When it comes to what an NFT can represent, it could be anything from a digital replica of Starry Night to a particularly well-worded tweet. On the flip side of non-fungible tokens, fungible tokens have also gained popularity in the form of cryptocurrencies. Each token, like Bitcoin, is exactly the same as the next token so is therefore fungible, but still a token. It is important to note that while both tokens are bought and sold on marketplaces like stocks are, their value is speculative. Their value is incredibly subjective, even more so than a stock which can represent a tangible stake in a company.

Both fungible and non-fungible tokens leverage blockchain technology, which in simplest terms is a series of ‘blocks’ that each contain information and are connected to each other. This chain of blocks (get it?) means the information contained in each block becomes an immutable record. To create an NFT, someone must ‘mint’ one, or publish the digital asset on the blockchain. NFTs can be bought and sold on a marketplace like a tangible good can, and the immutable record created by the blockchain provides proof of ownership for whoever has purchased the NFT. While ownership is solidified and proven with blockchain, another characteristic of blockchain technology is anonymity. We easily know who owns an NFT, but not the actual identity of that owner.

NFTS UNDER COPYRIGHT LAW

NFTs occupy a unique space under copyright law, but are subject to the basic rules other art forms are. The law protecting digital assets, the Digital Millennium Copyright Act (DMCA), was passed in 1998 before NFTs were prevalent. The DMCA allows any artist to request a work be taken down if it something they have ownership over, and did not authorize the publication of. This extends to artists with any ownership stake, whether they are a singer-songwriter with sole ownership over a song, or a whole team of writers and producers.

Basic copyright laws also apply to NFTs; NFTs that are derivatives of other work are only allowable if the person who created the derivative work is a copyright owner of the original work, since a copyright owner automatically acquires rights to reproduce the work or create derivatives. So, for example, Harry Styles could mint an NFT of his song “Treat People With Kindness,” which would then be considered a derivative work even if it’s the exact same song available on Spotify, because now it’s a digital version of the song tokenized within the blockchain. Despite being a big Harry Styles fan, I could not legally mint this NFT because I do not own the copyright like Harry Styles does. To legally mint this song as an NFT, I’d need to make considerable changes to it to be allowable under the fair use doctrine of copyright law – like sample 10 seconds within an original work of mine. For NFTs that are copies or very close derivative works of an art work, the minter will need to follow basic copyright law to get permission from the copyright holder or license the work.

NFTS: AN EASY TARGET FOR COPYRIGHT INFRINGEMENT

We’ve established that NFTs are subject to basic copyright laws. However, they are much more challenging to monitor and regulate than other digital assets, and the NFT industry is hesitant to put stronger protections in place.

While the process for copyright owners to flag a violation and take their unauthorized work down is the same with NFTs as it would be otherwise thanks to DMCA, it’s the anonymity and lack of regulations that make it difficult. On marketplaces like OpenSea where someone mints, sells, and purchases NFTs, it’s easy to remain anonymous and there is little internal or external regulation. Additionally, the fact that the actual works are often not actually stored in the blockchain, just the representative tokens, makes it hard to take down the actual work and not just the listed NFT.

People are motivated to infringe copyright to mint NFTs because of its boom – demand for NFTs still outweighs supply. While popular marketplaces like OpenSea technically have policies against copyright infringement, enforcement is lax. On OpenSea and Rarible (another popular marketplace), there is no verification required to prove that something you’ve minted and/or listed is your own. Experts also point out that copyright is less relevant because of the speculative valuation of NFTs. As a token, there’s no intrinsic value to it, and that’s another reason why the industry is reluctant to put protections in place.

Additionally, minting NFTs is anonymous by default because of the blockchain. This makes the jurisdiction of where to take legal action murky, which makes taking action difficult despite laws outlining protection. Further, marketplaces make commission on sales, so there’s little motivating them to crack down on thousands of their hosted NFTs. Some marketplaces are working to create processes that better identify plagiarized content, but artists are still calling on them to do more.

NFTS & THE MUSIC INDUSTRY

NFTs have potential to benefit musicians. They offer a new revenue source, which is especially important when streaming platforms have significantly reduced the income artists get from their music. Artists can create hype with NFTs because of their rarity – each can be unique and quantity can be closely controlled. DJ Steve Aoki released NFTs while COVID-19 forced his usual concert revenue to slow. They can be a new form of memorabilia, something a fan can buy like they would a tour t-shirt at a concert to remember their experience.

However, in practice the music industry has fallen victim to the copyright issues NFTs present. Many musicians and other copyright owners are finding their work on NFT marketplaces, selling for vast amounts of money, without their permission.

Music piracy has always been an issue, especially as easily-accessible digital formats of music have become the norm. When LimeWire and Napster came onto the scene in the early aughts, they quickly rose in popularity. These websites made music sharing via digital files accessible to the masses who were burning CDs to share otherwise. This quickly led to a wave of pirated music being sent all over the internet. While Napster was acquired and set down the legal path and Limewire was sued out of existence, similar websites have always cropped up in their place. As new technological capabilities evolve, it is expected that the pursuit of piracy follows, which is exactly what is happening with NFTs – while not free to share music like their predecessors, NFT marketplaces are in a way the next generation of music piracy.

Earlier this year, HitPiece was created as a marketplace to sell songs as NFTs, just one of each recording. It touted exclusive access to the NFT version of fans’ favorite songs, and additional benefits like access to exclusive experiences with the artists behind the songs. However, it was not the artists or any owners of rights to the songs who were authorizing, creating, and selling these NFTs. There was a large public outcry from professionals in the music industry, in reaction to a company they’d never spoken to illegally profiting off their work. HitPiece was able to lift songs to mint them as NFTs via Spotify’s API, pointing to how easily anyone could do this.

HitPiece voluntarily shut down its operations after the negative reaction, including a scathing statement from the Recording Industry Association of America, but as of this article the company has not faced any legal trouble. The vulnerability of the music industry within NFT marketplaces remains.

LOOKING TO THE FUTURE: SOLUTIONS

Ultimately, better NFT copyright enforcement within the music industry will benefit artists/copyright owners, as well as NFT buyers who don’t want to buy counterfeit NFTs.

Some marketplaces and sites that are related to NFTs have listened to artists’ calls to do more about copyright infringement. Sites that promote artists, like DeviantArt, have set up blockchain alerts that flag when something listed as an NFT is found on their website. This could be replicated within the music industry, with a site like Spotify, for example.

Outside of marketplaces and music platforms, some third parties see an opportunity to step in. MarqVision is a 3rd party that monitors sites that partner with them for NFT theft.

There is also an opportunity for the government to step in. NFTs are amongst a variety of digital changes that the DMCA is not equipped to regulate after 24 years since it was signed into law. Although COVID-19 slowed momentum here, there have been updates proposed in Congress that we could see come into effect in the near future.

There is much work to do in this space to improve copyright protection in the NFT industry. While some of the aforementioned solutions may gain traction, not everyone is optimistic. One expert offers the opinion that the only solution to avoid copyright infringement is for artists to stop creating art, as scammers will ‘always be able to outsmart them.’ In any case, music industry professionals should understand the vulnerability of their work and consider monitoring NFT marketplaces to get ahead of being victims of copyright infringement. And, if someone out there is thinking about buying an NFT, make sure you are certain there’s no risk it is infringing copyright in any way.

References

Beckett, Lois. “‘Huge Mess of Theft and Fraud:’ Artists Sound Alarm as NFT Crime Proliferates.” The Guardian, January 29, 2022, sec. Technology. https://www.theguardian.com/global/2022/jan/29/huge-mess-of-theft-artists-sound-alarm-theft-nfts-proliferates.

De, Nikhilesh. “People Keep Tokenizing Other Users’ Art. Here’s How Artists Can Protect Their Work,” March 11, 2021. https://www.coindesk.com/tech/2021/03/11/people-keep-tokenizing-other-users-art-heres-how-artists-can-protect-their-work/.

JD Supra. “NFTs and Copyright Law.” Accessed April 18, 2022. https://www.jdsupra.com/legalnews/nfts-and-copyright-law-7361836/.

JD Supra. “Sweeping Changes Proposed to the DMCA’s Notice-and-Takedown System.” Accessed April 25, 2022. https://www.jdsupra.com/legalnews/sweeping-changes-proposed-to-the-dmca-s-2305255/.

Jr, Edward Ongweso. “Site Sells Famous Songs as NFTs Without Permission, Sparks Global Outrage.” Vice (blog), February 2, 2022. https://www.vice.com/en/article/pkpqyy/site-sells-famous-songs-as-nfts-without-permission-sparks-global-outrage.

McIntyre, Hugh. “The Piracy Sites That Nearly Destroyed The Music Industry: What Happened To Limewire.” Forbes. Accessed May 2, 2022. https://www.forbes.com/sites/hughmcintyre/2018/03/21/what-happened-to-the-piracy-sites-that-nearly-destroyed-the-music-industry-limewire/.

Marketplace. “How NFTs Could Change the Music Industry,” November 2, 2021. https://www.marketplace.org/2021/11/02/how-nfts-could-change-music-industry-better-worse/.

“MARQVISION | Protect Your Brands from Fakes.” Accessed April 18, 2022. https://www.marqvision.com/.

Middleton, Ryan. “RIAA Sends Letter Over ‘Copyright Theft’ To ‘Scam Site’ Music NFT Company HitPiece.” Magnetic Magazine. Accessed April 16, 2022. https://www.magneticmag.com/2022/02/riaa-sends-copyright-theft-letter-scam-site-music-nft-company-hitpiece/.

Munster, Ben. “People Are Stealing Art and Turning It Into NFTs.” Vice (blog), March 15, 2021. https://www.vice.com/en/article/n7vxe7/people-are-stealing-art-and-turning-it-into-nfts.

NFI. “What Is Minting an NFT? Everything You Need To Know,” April 13, 2022. https://www.nfi.edu/what-is-minting-an-nft/.

Rhett / Mankind. What Is an NFT? (Crypto Beginners), 2020. https://www.youtube.com/watch?v=a8ww4aNlPQU.

Stokel-Walker, Decrypt / Chris. “NFTs Have a Problem With Copyright Theft.” Decrypt, April 3, 2022. https://decrypt.co/96637/nfts-have-a-problem-with-copyright-theft.

Stephen, Bijan. “NFT Mania Is Here, and so Are the Scammers.” The Verge, March 20, 2021. https://www.theverge.com/2021/3/20/22334527/nft-scams-artists-opensea-rarible-marble-cards-fraud-art.

“The Digital Millennium Copyright Act | U.S. Copyright Office.” Accessed April 16, 2022. https://www.copyright.gov/dmca/.

The Young Turks. Website RIPS OFF Musicians By Selling Their Music As NFTs, 2022. https://www.youtube.com/watch?v=J8FgioSpENo.

Twitter. “Steve Aoki (@steveaoki) / Twitter.” Accessed April 25, 2022. https://twitter.com/steveaoki.

“U.S. Copyright Office Fair Use Index.” Accessed April 23, 2022. https://www.copyright.gov/fair-use/.

“What Musicians Should Know about Copyright | U.S. Copyright Office.” Accessed April 18, 2022. https://www.copyright.gov/engage/musicians/.

“World’s Largest Online Art Gallery Deviantart Collaborates With Opensea to Detect Potential NFT Infringement – Blockchain Bitcoin News.” Accessed April 23, 2022. https://news.bitcoin.com/worlds-largest-online-art-gallery-deviantart-collaborates-with-opensea-to-detect-potential-nft-infringement/.

VR PRIMER

Virtual reality, or VR, creates a simulated environment where the user is immersed in a reality other than their own. They can interact with this artificial 3D environment, and in current VR experiences the environment adjusts to the user’s movement to visually change, just like perception changes in real life when looking in different directions or moving around.

Although commonly thought of as a 21st-century invention, VR can be traced back to 1838 when Sir Charles Wheatstone created a stereoscope, using mirrors to create a 3D viewing experience.

VR is most often presented with goggles the user wears to be immersed in the simulated environment. These range from cardboard models used in tandem with a smartphone, to large headsets that contain speakers for additional auditory immersion. Many are used with some kind of gloves or hand controllers so hand movements are captured in addition to head movements. The Oculus 2 headset, by Meta (formerly Facebook), was the bestselling VR headset in 2020.

VR has many applications in a variety of fields. Video games is one of the most popular applications, putting gamers in the middle of the action. Training is another use case–Walmart famously uses VR to train its HR Associates, as it provides a hands-on experience instead of learning something by reading. It has also found a place in therapy as PTSD patients use VR as a form of exposure therapy. The arts have more recently leveraged VR as a tool to enhance their practice.

PRECURSOR: IMMERSIVE THEATER

Before VR made it to the theater world, immersive theater gained popularity over the past decade with productions like Sleep No More (Punchdrunk Theater) leading the charge. Immersive theater brings the audience into the action; instead of being distanced from actors and sets by a divide between stage and seats, the production is taking place around the audience with no distance barrier. This immersive experience helps introduce more sensory experiences for the audience, with senses of “real space,” time, and movement. By having more senses activated, audiences are more engaged and have stronger ties to what they’re experiencing.

There is also an element of engaging directly with actors in the immersive theater space. In a typical theater setting, an audience member is sitting and watching a stage, akin to watching a screen. There is no direct human interaction, just human perception. When immersion is layered on and an audience member can interact with an actor, even talk to them in many cases, their human hardwiring for social interaction is activated, and the experience becomes more intimate and engaging. Instead of narrowing an audience’s world to what’s onstage, this expands their worlds by layering elements on top of it.

Immersive theater is successful in heightening audience experience without the assistance of VR. However, VR amps up the engagement and emotion to bring the benefits of immersion to the next level.

VR IMMERSION & EMOTIONAL RESPONSE

VR brings immersive theater to the next level–not only is the audience surrounded by what’s happening in the production, VR makes it so they are completely immersed into a different reality and POV. Audiences can get completely lost in the narrative because they are 100% immersed, and not experiencing distractions that could take them out of the present.

There is little to tell the audience they’re actually just in a theater venue or home on their couch. This effectively transports the audience and contributes to what’s referred to as a “place illusion,” where the audience feels like they’re actually experiencing a situation, despite knowing they put on VR goggles and aren’t really in that situation. This creates sensory perceptions and bodily memories that would happen as if the audience member was truly in the physical environment, prompting a new level of understanding and empathy for a situation other than their present reality.

Several studies have measured how audiences emotionally react to VR theatre experiences versus non-VR theater. While non-VR theater typically elicits some kind of emotional response from the audience, when the audience is experiencing theater in VR emotions, they experience more “tangible and personal” emotions from their close proximity to the production.

He et al. presented test subjects with two theater experiences: one filmed in 2D to simulate viewing a stage from a typical seat in the audience, and one of the same subject matter presented in VR. The study, which measured emotional response with surveys as well as EEG measurements, found that VR led to a higher sense of presence, higher engagement, and higher emotional response (both self-reported and physiologically-measured) versus the 2D experience. Tian et al. ran a similar study between 2D and VR stimuli and came to the same conclusion that physiologically-measured emotional arousal was higher in VR.

Interestingly, the effects of VR may be more of a subconscious impact than audiences realize – a study by Pozharliev et al. found that while test subjects did not self-report a heightened emotional response to VR advertising versus non-VR advertising, physiological measures like EEG did indicate heightened emotional arousal. So, even if audiences don’t consciously feel like a VR theater experience is impacting them differently than a non-VR experience, their brain is likely responding differently.

Notably, these studies did not present an interactive VR experience where the audience members could interact live with others; instead audiences interacted with a 360-degree pre-filmed world. Layering on direct interaction has even more implications for the audience.

VR IMMERSION WITH INTERACTIVITY

VR can make audiences part of the production itself, interacting with actors and helping to shape the show. Theater is typically a passive experience for the audience, in that they’re just watching. As a participant, they’re not only consuming the art but making it alongside actors and those behind the scenes. This enables a more communal theater experience, which is said to help contribute to the emotional catharsis that’s a large part of the goal of dramatic narrative.

The Under Presents have presented several VR theater experiences (one featured in the above video), and their actors have reported that they are able to respond to audience cues, like body language, that they would not be able to pick up on when distanced from the audience in typical theater setting. The actors adapt their acting live as a response, meaning the audience truly impacts the production. No passive viewing in site.

VR THEATER & EMPATHY

In addition to heightened emotional response, VR can enhance the empathetic response of audiences. Empathy is one of the often-touted benefits of theater–audience members can empathize with characters onstage, often seeing and understanding viewpoints and experiences other than their own. Theater can open audiences’ eyes to new perspectives.

VR can bring this to the next level, thanks to the total immersion. Being up close and personal with characters, sometimes even perceiving the production from the point of view of the character, helps form a more empathetic bond with the work being presented.

Cristofi et al. aggregated many surveys focusing on VR and highlighted the finding that VR experiences enable “perspective taking,” a psychological driver of empathy where someone perceives a situation from the perception of someone else. The studies provide support that this does enhance audiences’ empathetic responses and, in specific applications, reduces prejudice towards stigmatized groups.

In practice, this seems to be the case. At NYU’s Tisch School of the Arts’ Drama program, students are collaborating in VR. Students participating highlight their experience that as an audience member, you’re truly experiencing a situation like a character is, leading to stronger empathy than in a non-VR setting.

However, scientific findings are still emerging as VR becomes more popular. In 2021, a meta-analysis of all known studies on empathy in VR provided support that while VR enhances empathetic response, it’s limited to emotional empathy. Meaning users can feel compassion towards others’ points of view, but VR is not enabling users to truly imagine others’ perspectives (which would then elevate the experience to cognitive empathy) more so than non-VR applications do. The research points to the need of imagination to more actively construct and understand another’s experience, which can be done with active engagement, such as talking to others in the immersive experience.

LOOKING FORWARD

The use of VR is still in its early stages, especially with theater applications. VR remains a cool new technology that draws in audiences with its novelty, especially as presenters seek to upgrade the at-home theater experience thanks to COVID-19, but it can achieve more than just novelty.

We know that theater is an important tool in our world for looking at society under a lens and understanding different perspectives, and there is evidence to suggest that VR can help theater do this more effectively. Science points to the importance of active interaction to engage with the VR theater world, as is done by The Under Presents in their work, with University of Iowa as another example (featured above). Maybe it won’t achieve critical mass in the theater industry, but growing experimentation with it suggests it’s here to stay. It’s up to us to keep innovating with the new capabilities VR can provide.

References

Barrell, Sofía. “What Dreams May Come: A VR ‘Hamlet’ Puts Us in the Room.” AMERICAN THEATRE, January 25, 2019. https://www.americantheatre.org/2019/01/25/what-dreams-may-come-a-vr-hamlet-puts-us-in-the-room/.

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Christofi, M., and Despina Michael-Grigoriou. “Virtual Reality for Inducing Empathy and Reducing Prejudice towards Stigmatized Groups: A Survey.” 2017 23rd International Conference on Virtual System & Multimedia (VSMM), 2017. https://doi.org/10.1109/VSMM.2017.8346252.

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Martingano, Alison Jane, Fernanda Hererra, and Sara Konrath. “Virtual Reality Improves Emotional but Not Cognitive Empathy: A Meta-Analysis.” Technology, Mind, and Behavior 2, no. 1 (June 17, 2021). https://doi.org/10.1037/tmb0000034.
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