Kobe Bryant Estate dragged into Meta NFT Dispute
NFTs and the Hidden Dangers of Rights of Publicity
When institutions try to honor celebrities that have died tragically, the line between dignified tribute and cringe-worthy hack job is razor thin. And when a tribute involves a new technology or medium of expression, the SNAFU landmines can be nearly impossible to navigate. Even the most well-intentioned salute to a beloved celebrity is vulnerable to ridicule and social media vengeance.
Such was the case when online drama recently unfolded around a Kobe Bryant inspired NFT that was part of an on online Christie’s auction entitled PROOF OF SOVEREIGNTY: A Curated NFT Sale by Lady PheOnix. The NFT titled MetaKobe is a 3D visual piece from Guy Marshall, the prominent/legendary shoe designer behind Kobe Bryant's original sneaker, the "Kobe 1". According to the Christie's lot description, "Marshall reimagines his design with fashion tech brand, RTFKT, for the Metaverse era."
Yet several online critics lobbed accusations that Lady PheOnix and others involved in curating the NFT auction failed to get authorization from the Kobe Bryant estate and profiting off his celebrity. The charge against the project’s creators and curator was led by pseudonymous NFT influencer ‘Beanie’. Beanie is a well-known NFT investor and online provocateur.
Beanie’s accusation did not specifically reference intellectual property rights. However, legally speaking the underlying claim here is that the MetaKobe NFT violated Bryant’s rights of publicity and any profits derived from the auction should go to his estate. Publicity rights relate to a person's ability to commercially appropriate their own name or likeness. The scope of these rights varies by state. Under celebrity-friendly California law, the right of publicity continues after death. And the right of publicity can be implicated even if the offending content does feature the celebrity or use their name.
In fact, in a previous footwear publicity rights case, a jury concluded that an unauthorized grocery store ad featuring Michael Jordan sneakers (and congratulating the famed athlete) was commercial speech that caused a likelihood of confusion that Jordan endorsed the store's products and services.
In the case of the MetaKobe, it’s debatable whether a Court would conclude that the NFT violates Bryant’s rights of publicity. The digital sneaker design incorporates Kobe’s jersey numbers 8 and 24 and the purple and gold color scheme are a nod to the Lakers uniform. So the preliminary legal question would hinge on whether these design elements in combination with the title MetaKobe imply to the consumer that the Bryant estate endorsed the project. That is questionable in the context of a digital art piece (as opposed to the sale of a retail sneaker). Further, the MetaKobe creators would also have a strong defense that the work was sufficiently transformational in nature and therefore protected by the first amendment. In rights of publicity cases, the “transformative elements” defense is akin to the fair use defense against copyright violations.
But ultimately, the technicalities of publicity rights laws are largely irrelevant in the court of public opinion. Many people would still expect that Guy Marshall and the other MetaKobe creators get the express blessing of the estate before auctioning the work. Indeed, several twitter critics demanded that the proceeds of the auction go to a charity approved by the estate.
It’s still unclear whether the MetaKobe NFT was approved by the Bryant estate before auction. After the twitter argument between Beanie and Lady PheOnix, the Christie’s lot description of the MetaKobe was apparently amended to state that all proceeds from the sale would go to the Mamba and Mambacity Foundation (a non-profit associated with the estate). This may have been the result of a last second decision by Christie’s to quell any controversy and it remains a mystery whether the Kobe Bryant estate was ever consulted.
Unfortunately, even when an artist has complied with all laws and received approval from an estate, they are not immune from criticism by the fans of a beloved celebrity. Artist Andre O’Shea learned this lesson the hard way earlier this year following the release of a Chadwick Boseman NFT that was incorporated and promoted with the unofficial Oscars ‘swag bag’. The NFT was meant to honor Boseman with half the proceeds from the auction going to the Colon Cancer Foundation. But the announcement triggered an overwhelmingly negative response on social media, causing O’Shea to withdraw the original NFT design amidst the backlash.
Having passed their initial frenzied peak in popularity, NFTs are currently in the sweet spot of the hype cycle where they are an easy target for op-ed critiques, twitter memes, and late-night talk show punchlines. And with Bored Apes and Cryptopunks ruling the NFT land, the jokes practically write themselves. This is a dangerous environment for NFT artists who want to explore more controversial subjects or sensitive subjects. For these artists, the dangers of creative or promotional missteps are very real and they can inadvertently end up being caught in the cultural crossfire.