The Battle Over Poker NFTs

From PokerPaint Websote

On September 23, the art site PokerPaint announced on their Twitter (Tweet now deleted) that they were releasing a series of Non-Fungible Tokens (NFTs) on OpenSea.

The site, at that time, was fairly well known in the poker community. Famous for its expressionist renderings of various poker players, the site and its artist, Brett Butz, sold not only completed works but offered commissioned pieces that were popular among poker players.

However, the announcement drew the attention of a different crowd: Photographers. In particular photographers that specialized in shooting poker events.

This included several prominent photographers in the field including Joe Giron, Drew Amato and Eric Haskins, all whom said they found images they took in the collection and that they were never contacted for permission.

A fourth photographer, Hayley Hochstetler, said she was contacted but declined to give permission. Yet, the company used her image anyway. In her case, she also noted that PokerPaint removed her watermarks from the original.

PokerPaint initially tried to placate photographers by saying they were willing to give photographers a percentage of sales.

However, when that failed to soothe things over with the creators, they took back to Twitter with a more thorough apology.

In that apology, Butz admitted he was “clearly ignorant about copyright laws and got defensive when it was brought to my attention.” The site also removed any piece that they had received a complaint about and promised that they will do what they can to make up for “past mistakes” and that they are reviewing their business model going forward.

However, others were quick to point out that he would be better to remove ALL the images based on unlicensed photos and keep them down until proper rights can be obtained.

Nonetheless, with most of the images down, it seems like the story is winding to a close. However, a lot of questions remain: Were the works actually infringing and, if they were, what could PokerPaint (or others) do to avoid it in the future?

Were the Images Actually Infringing?

The most straightforward and accurate answer to that question is simply, “We don’t know.”

The case raises questions of fair use and whether the new paintings were transformative enough to be non-infringing or if they were simply derivative works.

As with many aspects of copyright, the only way to get a definitive answer on a fair use question is to have a case go to court and have either a judge or a jury decide the outcome. Even then, each image could introduce new variables that could change the outcome.

That, obviously, isn’t practical. So, instead, we have to look at past cases that are similar and try to make the best guess. To that end, there are three particularly interesting cases to look at

1: The Shepard Fairey Dispute

In 2009, the Associated Press filed a lawsuit against artist Shepherd Fairey over the famous Obama “Hope” poster that he designed. The lawsuit, in a manner similar to the PokerPaint situation, created the poster based closely on a photograph taken by an AP photographer.

Artistically, this is the case that is most similar to the PokerPaint one but, unfortunately doesn’t provide us much useful guidance. Fairey made the unfortunate decision to lie about which image was the basis and destroy other evidence. He was ultimately fined and sentenced to two years probation for it.

As for the case itself, it was settled in 2011 with neither side surrendering their position. As such, there’s not much to glean from this, even though it is very similar from an artistic standpoint.

2: The Richard Prince Decision

Also in 2009, photographer Patrick Cariou filed a lawsuit against “appropriation artist” Richard Prince over the alleged infringement of dozens of his images. According to Cariou, Prince’s 2008 series Canal Zone took images from a collection of photographs by Cariou and used them with only slight modifications.

In March 2011, the district court in the case found in favor of Cariou, finding that Prince’s works were infringing. Prince appealed to the Second Circuit Court of Appeals, which largely reversed that decision in April 2013. That court found that most of Prince’s work was non-infringing (though several works still were) and the two sides ultimately settled the case in March 2014.

The case became something of a pariah for photographers, who worried that, if Prince’s limited modifications counted as fair use, it could open the door to widespread use of photographs that were legally protected.

3: The Andy Warhol Ruling

The final case is also by far the most recent. In March 2021, the Second Circuit (Note: The same one involved in the controversial Prince decision) ruled that Andy Warhol had violated the copyright of photographer Lynn Goldsmith when creating portraits of the musician Prince (not to be confused with Richard Prince).

The case actually went back to 1981, when Goldsmith took the photos of Prince. Three years later, she licensed one of those photos of Vanity Fair who, with permission, commissioned a new work based on it by Andy Warhol. However, Warhol also created 15 additional works known as the Prince Series that were unlicensed.

Goldsmith became aware of the series after Prince’s death in April 2016 and that resulted in the lawsuit.

The lower court sided with the estate of Andy Warhol, finding that the Warhol images were transformative and non-infringing. However, the Second Circuit, said that, even though Warhol made more physical changes than Richard Prince did in the earlier case, Warhol did not add enough “new expression, meaning or message” to the work.

To that end, the court sided with Goldsmith, likening the Warhol paintings to a movie based upon a book, rather than the creation of a new, transformative work.

So Where Does This Leave Us?

Looking at these decisions, it’s ultimately about what separates the Prince ruling from the Warhol ruling. In the Prince case the court ruled that, even though the visual modifications were light, it drastically changed the message of the work. Meanwhile, though Warhol changed much more in converting the photographs to painting, they were still largely portraits of Prince and, thus, had the same message.

Turning our focus back to PokerPaint, it’s pretty obvious that they were creating stylized portraits of the players, not trying to create a new message. This is furthered by the fact that some players actually commissioned their own portraits from the site.

However, this nuance is still subjective, and it’s worth noting that we are only looking at one circuit in the U.S. court system. This says nothing about the other 12 circuits, much less how other countries would look at this.

Still, these are some of the more important copyright cases in recent U.S. history so, at least within this country, they paint a good image of how such a case would have likely turned out.

One Additional Issue: The DMCA

In addition to the above fair use issues, there is also one other to consider: The Digital Millennium Copyright Act (DMCA).

The DMCA is a broad and complex law, but there is one element that applies directly, the removal of Copyright Management Information (CMI)

Under the DMCA, the removal of CMI is, by itself, an infringement. As long as that information is affixed to the work itself, removing it is an infringement. That becomes particularly important in the case of Hochstetler, who claims that PokerPaint removed her watermark.

A watermark absolutely qualifies CMI (as long as it is used to identify the creator/rightsholder) and removing it creates a copyright violation regardless of whether the final work is or is not a fair use. Unfortunately for PokerPaint, that is more of a bright line rule and not one really up for debate.

Bottom Line

If I were advising Butz or the team at PokerPaint directly, my statement would be simple: First, remove all images based on unlicensed photos now, regardless of complaints, and then contract a lawyer that can advise you on who to move going forward.

Personally, I’m very willing to believe that Butz walked into this business with a limited understanding of copyright and that much of this was not malice on his part. However, that doesn’t excuse this behavior. When entering a creative field and basing your work on preexisting pieces, there’s an obligation to make sure that your use is both legal and ethical.

Here’s hoping that the site is able to get the help that it needs and, with time, bounce back from this.

In the meantime, listen to photographers, listen to your lawyers and focus on how you can move forward as a collaborative member of the community rather than someone who is widely seen as a thief.