Earlier this month, actor Seth Green lost several non-fungible tokens (NFTs) to an apparent phishing attack.
One of the stolen NFTs included a Bored Ape, which according to transaction records, was sold for $200,000 from the scammer to a user named DarkWing84.
The actor has since tried multiple attempts on Twitter at getting it back, especially as the Ape was a central character in a new show Green had been working on. Green tweeted at a Twitter user with the same handle as the buyer, “looks like you bought my stolen ape- hit me up so we can fix it.” There appear to be no tweets in response from the account, which last tweeted in 2021.
“I bought that Ape in July 2021, and have spent the last several months developing and exploiting the IP to make it into the star of this show,” said Green to Gary Vaynerchuk at NFT conference VeeCon this weekend. “Days before he’s set to make his world debut, he’s literally kidnapped.”
Unfortunately, when Green lost the Ape, he also may have lost the commercial rights to use it on his show. Commercial rights were one of the seemingly appealing things about owning an Ape, because unlike with other NFT collections, its owners had an unlimited, worldwide license to use it for the purpose of creating derivative works, said NFT lawyer Edward Lee in a January interview with The Block.
This type of license allowed NFT buyers unlimited rights to make “commercial uses of and derivative works from the underlying Bored Ape characters,” which was “highly unusual in the NFT market,” wrote Lee, in an article highlighting the possible reason the Bored Ape business model has been so successful.
But with hacks like this, it’s unclear if Green’s show will still go on, and what this means for NFT ownership more broadly. The new holder of the Bored Ape now holds the commercial rights to use it and the laws in this are still developing.
Some experts are on the side that a stolen NFT does not transfer the rights to it.
“Hot Take: This is nonsense. A thief is not a “purchaser” or “owner” and thus can’t avail his/herself of the stolen rights under the license,” tweeted Drew Hinkes, adjunct professor at NYU Law. “Reminder- digital assets give you system powers, not legal rights. Legal rights come from law.”
In response, another lawyer, James Grimmelmann, tweeted back that the answer is not so clear cut.
“Maybe the current possessor of Bored # 8398 has a license to the copyright. Maybe they don’t,” he wrote. “It depends on property law, copyright law, and most importantly the interpretation of the BAYC license. But the BAYC license is hopelessly ambiguous. It is not fit for purpose.”
OpenSea, the platform on which the NFT was transacted, has frozen the items that Green reported to the platform, a rep from the company told The Block.
“Our platform policies and Terms of Service explicitly prohibit the use of OpenSea to buy, sell, or transfer stolen and/or fraudulently obtained items,” said a company spokesperson in an email to The Block, adding: “We do not have the power to freeze or delist NFTs that exist on decentralized blockchains; however, we do disable the ability to use OpenSea to buy or sell stolen items. We enforce our policy in various ways, including disabling buying and selling on violating content, delisting, and in some instances, banning accounts.” This information was also given to Green when he reported the incident to OpenSea.
Green said at VeeCon that he’s currently working with authorities to get his NFT back.
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