Copyright NFT of my Baseball Cards

[itchibahn]

Jurisdiction

Texas

I own a set of 1991 Topps Desert Shield baseball cards, and have few questions:

1. If I scan my cards and create NFT's (non-fungible-token), am I violating copyright?
2. If no to above, can I sell these NFT's without violating copyright?
2. If no to #2, can I give away these NFT's for free along with the original cards without violating copyright?

Thanks in advance.

 

[zddoodah]

1. Yes. Section 106 of the Copyright Act confers upon the owner of a copyright "the exclusive right to do and to authorize [others to do] any of" several things, including "(1) to reproduce the copyrighted work. . . ."

Since the answer to question #1 is yes, questions 2 and 3 are moot.

 

[adjusterjack]

I don't think Number 2 is moot. If you sell the duplicate and keep the original (like a DVD movie) you are infringing on copyright.

If you give or sell the original and the duplicate to one person, you are not.

That's what I think, subject to verification by those more wiser than I.

 

[welkin]

1. Yes. Section 106 of the Copyright Act confers upon the owner of a copyright "the exclusive right to do and to authorize [others to do] any of" several things, including "(1) to reproduce the copyrighted work. . . ."

OP owns a set of cards. He/she doesn't own the copyright. Topps is the owner of the copyright. Without the consent of Topps OP can't make copies in any format.

 

[welkin]

I don't think Number 2 is moot. If you sell the duplicate and keep the original (like a DVD movie) you are infringing on copyright.

If you give or sell the original and the duplicate to one person, you are not.

That's what I think, subject to verification by those more wiser than I.

It doesn't matter if you give the original and the duplicate to the same person or not. Where there was only one now there are two. That decreases the value of the one by 50%.

 

[itchibahn]

I'm not duplicating the card to make another copy of physical card. I'm making a NFT digital asset of it, similar to scanning the card and saving it to JPG image for display on Internet. Here's an example of digital asset:

https://gateway.pinata.cloud/ipfs/Q...Nq6huF3KUh6vWDBLbmsAwu/topps-1991-ODS-001.mp4

I kind of thought that #2 could be an infringement on copyright, but if #1 and #3 infringes on copyright, aren't all baseball card sellers violating it as well since they are scanning the card to post it on eBay?

 

[Tax Counsel]

I'm not duplicating the card to make another copy of physical card. I'm making a NFT digital asset of it, similar to scanning the card and saving it to JPG image for display on Internet.

And scanning that image for display on the internet also would violate the rights of the copyright holder unless you can assert a valid defense like fair use.

I kind of thought that #2 could be an infringement on copyright, but if #1 and #3 infringes on copyright, aren't all baseball card sellers violating it as well since they are scanning the card to post it on eBay?

Yes, they may indeed be infringing on the rights of the copyright holder.

And there is another issue to consider, and that is the right of publicity of the particular baseball players, too.

 

[zddoodah]

I don't think Number 2 is moot.

#2 is moot because the question is premised on the answer to #1 being "no." Since the answer to #1 is "yes," #2 is moot (as is #3).

If you give or sell the original and the duplicate to one person, you are not.

Not correct. Another of the exclusive rights of copyright under section 106 (linked above) is the right "to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership." The sale or giving of the illegally made reproduction is a separate act of infringement.

I'm not duplicating the card to make another copy of physical card. I'm making a NFT digital asset of it, similar to scanning the card and saving it to JPG image for display on Internet.

Doesn't make any difference, and your attempt to distinguish it is a bit like saying that you're making a digital copy of a vinyl record. It's still a copy (and, if not, it's a derivative, and it also infringes copyright to make unauthorized derivatives).

if #1 and #3 infringes on copyright, aren't all baseball card sellers violating it as well since they are scanning the card to post it on eBay?

No. Let's say that, in the early 1980s, I had had the foresight not to sell my near complete 1975 Topps cards. The Robin Yount and George Brett rookie cards and Nolan Ryan card are worth several thousand a piece (among other cards in that set). Had I kept those cards, I would be free to give them away or sell them as I see fit (google "first sale doctrine" for more info). If I want to scan the cards in connection with eBay ads for the cards, that is permissible under something called "fair use." What I cannot do legally is make copies (regardless of the medium of the copies) for the purposes of public distribution/sale.

And there is another issue to consider, and that is the right of publicity of the particular baseball players, too.

Agree. This would probably not be an issue for a transfer of the card or, if the OP had a license from the copyright owner. However, since we're talking about infringing copies and distribution, then ROP does also come into play.

 

[itchibahn]

Thank you all for reply. I now understand better to stay out of trouble.