The CryptoPunks collection is not copyrightable. A bold statement? Not in actuality – the non-copyrightability of CryptoPunks is well-established, although not well-known: Copyright lawyer Brian L Frye wrote a paper in 2022 in which he questioned the copyrightability of CryptoPunks, noting that a lack of uniqueness and human involvement in the final product would not stand up to US Copyright standards. “I’m not sure anyone owns the copyright in the CryptoPunks images, because I’m not sure they’re copyrightable in the first place. And I suspect [Yuga Labs] is also worried about the copyrightability of the CryptoPunks images. After all, they complain about copyright infringement, but don’t file infringement actions,” Frye wrote.
Let’s examine the CryptoPunks collection by comparing the requirements of copyrightability to Frye’s points on the collection.
Has The CryptoPunks Collection Been Fixed In A Tangible Medium Of Expression? No
No, the CryptoPunk collection has not been fixed in a tangible medium of expression. As said by Frye, “CryptoPunks NFTs point to a CryptoPunks image stored on-chain. Copyright doesn’t care where an NFT points, it cares what an NFT contains”. To that point, it is well known that CryptoPunks are not completely on-chain – On 8-18-2021, Larva Labs moved the CryptoPunks collection on-chain, the contract of which can be seen here, but CryptoPunks’ metadata (attributes of the pixel matrix / bitmap and so on) are not on-chain in the contract source code. Rather, the CryptoPunks metadata exists in the 266 transaction (txn) inputs, which can be found here.
Was The CryptoPunks Collection Created By A Human Author? No
No, the CryptoPunks collection was not created by a human author and with human involvement. The Copyright Office has long held that copyright can’t protect works produced by a machine without the intervention of a human author. From Frye, “Larva Labs isn’t really claiming copyright ownership of particular CryptoPunks images. It’s implicitly claiming copyright ownership of the graphic elements used to create CryptoPunks images, and, by extension, all of the CryptoPunks images those elements can be used to create.” This is a major problem for the idea of human involvement in the creation of a CryptoPunk NFT!
Does The CryptoPunks Collection Constitute Copyrightable Subject Matter? No
No, the CryptoPunks collection does not constitute copyrightable subject matter. “Copyright can’t protect the CryptoPunks NFTs because they don’t include any copyrightable elements. The CryptoPunks NFTs didn’t and can’t change. They didn’t include any copyrightable elements when they were created, and they don’t include any copyrightable elements now”. However, “Generative works of code written on the Ethereum blockchain… probably contain copyrightable subject matter.” – Frye.
Is The CryptoPunks Collection Sufficiently Original? No
No, the CryptoPunks collection is not sufficiently original. “Even the CryptoPunks types are minimalistic representations of human heads. While there’s more than one way to represent a face in three-quarters profile in a 24×24 matrix of pixels, the number of available options is limited. What’s more, some options are more desirable than others. It’s not enough to say that others can still create similar images. They need and deserve the ability to create similar images that are as good or better. The idea-expression dichotomy protects that right by preventing copyright owners from monopolizing a category of works.” – Frye.
Was The CryptoPunks Collection Independently Created? No
No, the CryptoPunks collection was not independently created. In fact, and by definition, CryptoPunks are a derivative collection of V1 CryptoPunks. That is not to say that derivative collections cannot have copyrights. Rather, the point to make is that provenance has not been properly established. In fact, the provenance of the CryptoPunks collection is not only wrong, it has been intentionally obfuscated; the CryptoPunks collection (now called the V1 CryptoPunks collection) was released by Larva Labs on 6-09-2017, the contract of which can be seen here. Due to an error in its marketplace discovered 6-17-2017, Larva Labs decided to airdrop on 6-23-2017 new Punks (now called CryptoPunks) to the original claimants of the now called V1 CryptoPunks that were released on 6-09-2017. Then, for the nail in the coffin on the independent creation of the CryptoPunks collection, on 3-04-2018, Larva Labs filed a visual copyright registration for “CryptoPunks”, which can be seen here, citing a publication date of June 9th, 2017 (which refers to the now called V1 CryptoPunks, rather than the now called CryptoPunks).
Does The CryptoPunk Collection Possess At Least Some Minimal Degree Of Creativity? No
No, the CryptoPunks collection does not possess at least a minimal degree of creativity. “Many of the graphic elements created by Larva Labs and used to create the CryptoPunks images are quite simple, and do not qualify for copyright protection. For example, there’s only a limited number of ways to depict a cigarette, headband, or glasses in a 24×24 matrix of pixels. When there’s only one way or a limited number of ways to represent an object in a particular medium, then the merger doctrine applies, and none of them are protected. Further, some of the graphic elements consist of only a few pixels, like a clown nose, buck teeth, or a mole. If anything lacks the ‘creativity’ required for copyright protection, it’s a square of four red pixels. In addition, only a tiny fraction [of CryptoPunks pixels] are sufficiently semiotically loaded to resemble something and convey information.” – Frye
Final Thoughts
The non-copyrightability of CryptoPunks represents a fascinating paradox in the NFT space. Here we have one of the most valuable and culturally significant NFT collections—with individual pieces selling for millions of dollars—yet it fails to meet even the most basic requirements for copyright protection under US law. This reality should give pause to both collectors and creators in the NFT ecosystem. The value of CryptoPunks clearly doesn’t derive from traditional intellectual property rights, but rather from social consensus, historical significance, and network effects. The collection’s astronomical prices persist despite—or perhaps because of—its existence in a legal gray area.
The broader implications extend beyond CryptoPunks. If algorithmically generated collections with minimal human creative input cannot be copyrighted, what does this mean for the thousands of derivative PFP projects that followed? The entire generative art movement in NFTs may be building on foundations of sand when it comes to traditional IP protection.
Thanks for reading!