In November 2021, Quentin Tarantino announced plans to auction off seven “exclusive scenes” from Pulp Fiction based on his original handwritten script in the form of non-fungible tokens (NFTs). A few days after the announcement, Miramax, the studio that produced Pulp Fiction, filed suit against Tarantino, calling the auction a “short-term money grab” that infringed on Miramax’s registered trademarks and copyrights on elements of the film. (Miramax, LLC v. Quentin Tarantino, et al., C.D. Cal., Case No. 2:21-cv-08979). Miramax argued that Tarantino does not have the right to “mint” or publish digital assets of Pulp Fiction on the blockchain to make them purchasable. Instead, that right belongs to Miramax, and only Miramax, according to the lawsuit.
The Root of the Case
The crux of the lawsuit asked whether Tarantino, who wrote and owns the copyright to the screenplay for Pulp Fiction, or Miramax, which owns the copyright to the movie, has the right to publish portions of the work through the sale of NFTs. Since the parties settled in mid-September, we did not get a feel for the answer. Had this case proceeded, the answer would have hinged on the type of copyright-protected expression contained in the NFTs and an interpretation of the agreements at play. No details of the settlement between the parties have been made public, but as of the writing of this article, Tarantino’s NFTs are still up for sale. Because of this settlement, we will have to wait for clarity on who has the right to publish portions of existing work as NFTs when such rights were not contemplated in the original agreements.
At their inception, NFTs were an experimental technology confined to a niche community of artists and collectors who sought to showcase their creations or collections. NFTs have now grown to become an innovative and disruptive distribution platform used by celebrities, brands, and studios. Because most NFTs are being developed tangential to an existing copyrighted or trademarked piece of work, novel issues arise in determining who has the right to mint NFTs—particularly when the NFT is derived from intellectual property that is subject to preexisting license agreements drafted long before the words “non-fungible token” were spoken consecutively. This lawsuit provided the first preview of these battles.
According to the official website for the sale of the NFTs, each NFT “consists of the original script from a single iconic scene, as well as personalized audio commentary from Quentin Tarantino himself.” In addition, “[t]he collection holds secrets from Pulp Fiction,” and “[e]ach NFT contains one or more previously unknown secrets about the work that led to the creation of the Pulp Fiction screenplay.”
Nearly three decades ago, Tarantino and his production company, Visiona Romantica, Inc., entered into a series of agreements with Miramax in relation to the production of Pulp Fiction. Under the terms of those agreements, Tarantino broadly gave Miramax “all rights . . . in and to the Film . . . now or hereafter known including without limitation the right to distribute the Film in all media now or hereafter known . . . .” Tarantino reserved a limited set of rights to himself, including “print publication (including without limitation screenplay publication . . . in audio and electronic formats as well, as applicable).”
Tarantino argued the creation and sale of the Pulp Fiction NFTs fall within his print publication rights, specifically his screenplay publication rights. According to Tarantino, Miramax’s copyright claim “ignores the clear language” set out in agreements for the production and creation of Pulp Fiction. Tarantino argued that although Miramax owns rights to the Pulp Fiction film, it cannot stake a claim on “underlying elements of the screenplay unless those rights are expressly assigned to them.”
Miramax countered that its rights are farther-reaching and account for technology not yet created when the deal was consummated and that the NFTs fall within its broader, forward-looking rights, which govern “all media now or hereafter known.”
Likely the First of Many
Even though Miramax’s lawsuit was the first big-name dispute over who can “mint” NFTs that are tangential to an existing movie or television series and which aspects can be minted, it will surely not be the last.