Who Owns the Bored Ape Yacht Club Copyrights?

(Disclosure: I own a Meebit.)

A couple months ago, internet provocateur Ryder Ripps accused Yuga Labs of being secret white supremacist Nazis who made the Bored Ape Yacht Club (BAYC) NFT collection as a way to troll humanity on behalf of 4chan. 

To stick it to said Nazis and their collection of racist NFTs, Ryder created… an identical collection of NFTs called “RR/BAYC” and sold it for $1.6 million.

Take that, racist imagery.

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I’m skeptical of Ryder’s accusations for a number of reasons, including one that is best summed up by an Anti-Defamation League spokesperson who said “If you’re an extremist, you have a set ideology… You don’t dabble in all different kinds.” 

Ripps’ accusations against Yuga Labs span from “they’re referencing Dutch conquerors cutting off the hands of the Congolese” to “they put 18 teeth on an Ape to numerically symbolize Adolph Hitler.”

The ADL spokesperson’s point is that the charcuterie board of hate of which Ripps has accused Yuga Labs really isn’t consistent with what you find in actually ideologically hateful people/groups.

Put my own way, when you’re drawing from the canon of everything ever evil in the world and looking for “eerie” similarities, you’ll find them.

To a hammer everything’s a nail. To Ryder Ripps everything’s an arcane clan reference.

Yuga is now suing Ryder for trademark infringement (for the use of “BAYC” and their logo in his RR/BAYC collection) and that lawsuit has opened up an interesting conversation around trademark and copyright.

(If you want to understand this issue better, check out my conversation with 3 IP lawyers here.)

A narrative is emerging (fostered by Ryder and CryptoPhunks) that says Yuga has chosen not to sue Ryder for copyright infringement (which would mean suing him for copying the Apes themselves) but rather for trademark infringement (use of their business symbols, logos, etc.) because Yuga labs doesn’t have and, in fact, never had copyright over the apes to begin with.

If true, this would have big, and damaging, implications for the space.

Fortunately, and I say this with 95%** confidence, it’s bullshit. 

What arguments do the BAYC-Nazi-truthers have?

First, they say that the BAYC art isn’t copyrightable on the grounds that it isn’t creative or original enough. 

In 2017 Taylor Swift was sued for copyright infringement over the lyrics “Playas gonna play play play and the haters gonna hate hate hate” in her song Shake it Off. Songwriters Sean Hall and Nathan Butler claimed it was ripped off from their song (performed by 3WL) Playas Gon’ Play. 

A judge ruled that those specific lyrics “lack[ed] the modicum of originality and creativity required for copyright protection.”

Ryder and others believe the same argument could be made against Punks, Apes, or other NFT projects: they are insufficiently creative or unique to be copyrighted.

But as my, now, intellectual property lawyer friend and two-time guest of the pod, Jeremy Goldman, wrote to me:

“The threshold for originality [in copyright law] is ‘extremely low…’ To deny copyright protection, there would have to be a finding that the PFP artwork possess[es] literally no ‘creative spark.’  How can that be?!”

Look, I’m a big Swiftie, but I am happy to admit that Bored Apes have a lot more originality than the phrase “haters gonna hate.” 

And by the way, the decision on the Swift case was appealed and is now going to court. 

But alas, the BAYC truthers respond, maybe humans can’t actually copyright generative art like Apes at all? 

In 2011, a monkey in Indonesia took a selfie using the camera of a wildlife photographer. PETA sued the photographer for selling the image by arguing that because the monkey had taken the picture himself, the monkey had the copyright over the picture, just as a human would.

A judge dismissed the case on the grounds that, even if the monkey did have some sort of claim over the copyright, a monkey can’t sue for copyright infringement. 

While humans may have designed the underlying traits of the Bored Apes – and therefore humans might have copyright over some of those traits – the end result of the Ape was created by a computer; calling into question, as in the case of the monkey, who has the copyright?

Here again the argument feels weak, at best, when applied to Bored Apes. To argue that BAYC isn’t copyrightable because a computer helped make it seems about as vacuous to me as arguing a photographer doesn’t own his picture because he used a camera. 

Extrapolate it out and we’d be left with potters and finger painters. 

With a preponderance of evidence pointing to the idea that Yuga Labs did in fact hold the copyright to BAYC (and, this is a deeper rabbit hole, but they almost certainly still hold copyright to the BAYC): why isn’t Yuga suing Ryder for copyright infringement? 

Well, for one thing, they’ve made a big show about having granted IP rights to their holders. While it seems likely that Yuga, as well as individual holders, could sue Ryder, it’s probably better optics to let the holders handle it.

What’s more, Yuga Labs wants to make Ryder go away as quickly and easily as possible. Attacking his use of their trademark is the path of least resistance. Check out this transcript of an exchange between two attorneys from this episode of Overpriced JPEGs (~54:51):

Jeremy Goldman: “[As a litigator] I will choose causes of action not based on whether they have merit and not based on whether I have rights and not based on anything, it’s just what’s the laser beam where this person has no good defense. And so just because a party has a copyright claim doesn’t mean they want to assert it if they have a slam dunk trademark claim. So I just want to make that clear. Just because somebody didn’t assert a right is not any kind of acknowledgement or admission that they don’t have the right. It just means well if I have a slam dunk way to get rid of this thing where the other person has no good defense in my opinion, I might just go that route.”

Alex Moddell: “And that’s where undeniably Ryder Ripps fails. The use of the logo, the use of the name, the use of the brand and the use of the phrase are clear, unequivocal trademark infringements and clear violations of the trademark filings by Yuga.”

So there you have it. Saying that Yuga Labs’ decision to sue Ryder for trademark, rather than copyright, infringement is proof they never had the copyright in the first place is about as inane as claiming Yuga Labs’ founders are Nazis because their project was reported to have minted out on April 30th, Hitler’s death day. I guess it’s no surprise the same people are pushing both stories.

(As a side note, if you were a Nazi, why would you celebrate his death day!? His birthday is April 20th and BAYC started minting 4/23 -- just move it up 3 days…)

(**Why not 100% confidence? Well, look. We’re in uncharted territory. Anything, technically, could happen. A judge could go crazy the day he renders a verdict, Yuga Labs could have a side deal none of us knows about, “art” is subjective, blah blah, it’s the wild west out here baby). 

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