CryptoPhunks: CryptoPunks parody or copycat?

CryptoPhunks: CryptoPunks parody or copycat?

Aug 19, 2021 Tech

“Phunk is Punk”

CryptoPhunks: CryptoPunks parody or copycat?

3 years ago

On July 13th of this year, CryptoPunks parody project CryptoPhunks posted a tweet announcing they had received a takedown notice under the Digital Millennium Copyright ACT. Almost immediately, people on Twitter took sides. Some called CryptoPhunks “unoriginal thieves,” “shameless copy paste artists,” “low effort,” and “asking for trouble.” Others rallied behind them, defending the vague concepts of “art” and “parody” that originally inspired the project, and accusing Larva Labs of trying to apply web2 regulations to the brave new world of web3 . One user commented:

“This had to happen sooner or later, the wild west is over.”

But is it? Or is this just an opportunity for the crypto community to spearhead meaningful regulations in NFTs and web3?

***

Just about anyone even slightly aware of NFTs knows about CryptoPunks, the computer-generated collectables that are selling at a minimum of 45 ETH ($138,053.25) at the time of this publication. 10,000 of these randomized avatar faces exist, and their popularity among collectors mixed with the scarcity factor (there is only 1 of each) has catapulted their value during this particularly exciting time in the NFT market.

And just as with any other industry boom, where there is profit, there are people trying to drop in on the same wave.

CryptoPhunks are CryptoPunks that have been “hand-flipped,” but are otherwise minimally altered. They are aesthetically identical to the Punks in every way except that 1. they face left instead of right, and 2. they have a 1-pixel-thick color border denoting the rarity of each set. Larva Labs claimed under the DMCA that multiple images had been copied onto the NFT trading platform OpenSea without their permission, and demanded that they be taken down.

But CryptoPhunks are not the only Punk spinoff to catch the eye of new collectors. Crown Punks, AltPunks, LowResPunks, and MidiPinks are just a few variations on the same theme. However, Phunks are one of the few to have been hit with a potential lawsuit, which echoes the ways in which corporate entities could use copyright laws as a way to take down little guys that they saw as a threat to business.

While the original question around the controversy was “what’s the big deal about another wannabe Punk in the market,” the conversation quickly shifted to whether or not a slightly-altered version of an original artwork could be minted and sold as a separate NFT, and whether or not one could apply established copyright laws to the web3 world.

Top row left to right: CryptoPunk #9100, CrownPunk #441, CryptoPhunk #154
Bottom row left to right: AltPunk #0034, Low Resolution Punk 2924, MidiPunk #028

NFTs represent a piece of art and give the buyer assurance that what they own is a unique, original work, which is important in a landscape like the internet where images can be reproduced and altered ad infinitum. But what about the mutations, mash-ups, and information saturation that make up so much of the digital world? Should we consider them to have their own artistic merit, and should we be rethinking how copyright law is interpreted, particularly in this new world of digital provenance?

The decentralized nature of NFTs and the blockchain networks that house them certainly aims to fight big government and kleptocracy, but we are still in the developing stages of both decentralization and public governance. Lack of oversight is not the answer, because we know that humans are inclined to benefit themselves even at the expense of others (see Hobbes’ Leviathan). But couldn’t adding lawyers and brokers to the ecosystem topple the democratic utopia that blockchain technology is attempting to create?

Part of the issue is that buying an NFT does not mean said buyer owns the copyright. That remains with the creator, unless of course it is bundled, which is not currently the norm (but it might be! See Alibaba’s new marketplace). Though the owner of a Punk can share their NFT with anyone and even use that image as, say, a profile pic (read: half of the NFT enthusiasts on Twitter), they cannot legally sell merchandise that has the artwork on it. 

It’s the same concept in traditional art: Just because you bought an original Basquiat doesn’t mean you can then sell a copy of the image to Hallmark to put on a get-well-soon card. The value of the work lies, not in how much money one could make if they commercialized the image, but in how much someone is willing to pay for it at auction.

But the other part of the issue is that there are currently no specific laws or regulations to stop people from selling near-copies or even straight up plagiarized works as NFTs to unsuspecting collectors in the marketplace, which is a huge threat to the marketplace considering how trading copyrighted work, even unknowingly, can result in huge fines.

“Phunk is Punk” on Foundation

According to the CryptoPhunks website, “Phunks poked fun at those who were applying the ‘old-school’ rules of art into this new frontier of NFTs.” 

Perhaps they were referring to “whales” from the art world of old who could buy lots of art and become powerful enough to manipulate the value of a specific piece or pieces. Perhaps they were referring to the way digital artworks were becoming assets; the rich were getting richer; etc. etc. Or, perhaps, they were referring to copyright, censorship, or anything else that got in the way of artistic expression (and profit).

Though their intentions might not have been entirely obvious, what is clear is that the creators of Phunks were as interested in getting their punks into the hands of new collectors as they were in pushing boundaries. According to their manifesto:

“CryptoPhunks wanted to test these limits of ‘parody’ and bias against centralized marketplaces, of provenance on the blockchain, [and] censorship, while also setting out to unite strangers and collectors from around the space.”

When the Phunks were delisted, OpenSea’s Head of Product Nate Chastain tweeted: “We’ve always been permissive at OpenSea towards homages/derivatives, but where things get especially tricky is when the item in question is 1 pixel different, a flipped image, one color off, etc.” So then, how different does the homage or parody have to be to be considered an original piece of art?

Nate Chastain on Twitter, see the full thread here

According to Brian McQuillen, a lawyer who specializes in intellectual property law, “it’s not a black and white answer as to when a parody is ‘fair use’ – a defense to copyright infringement under the law. A parody allows you to escape copyright laws because you are commenting on the original art.” If Larva Labs was to take the Phunks to court, they would look at a variety of factors, including “whether or not you are trying to make money off of it, how transformative the new work is, and whether or not it is clear that there is social commentary going on.”

CryptoPunks had not only become mainstream, but they had also turned into a sort of status symbol for the lucky ones who got in early and the ultra wealthy who have millions to spend on a less-than-impressive pixel artwork, and neither of these things vibe with the true spirit of “punk.” The whole idea of “flipping” the punks related to how they wanted to “flip off” the establishment and “punk” the Punks. But when the Phunks got delisted, the creators of Phunks began to market themselves as “Punks that Larva Labs does not want you to own,” which complicated their claims of being a different product altogether.

In fact, their very first tweet reads: “What the flip is a CryptoPhunk? A Punk looks into the mirror…” which seems to be less of a social commentary and more of an explanation as to why the Punks (notice the capital P in the tweet) are facing the “wrong” way. But even if the Phunks did not intend to sell NFTs by faking people out, they were clearly piggybacking off of the popular iconography of the OG Punks, just as all of the other spin-offs were. This produced a separate potential legal issue. 

Trademark law protects a company’s name and branding. For example, as Mr. McQuillen told me, if someone made a soda with branding that was similar to the Coca-Cola trademark and consumers were not sure if it was Coke or not, Coca-Cola would go after them. Not only was there intentional deception, but Coca-Cola could lose money and suffer damage to their reputation due to this act of trademark infringement. 

The Phunks were making money, but it was unclear if buyers mistook them for Punks, or if they felt the Phunks had artistic merit all their own. In this case, we would ask, what is the source of the work? Are they making it seem like they are the same people? Did they have a disclaimer on their website that clarified that they were different from Punks? Was the choice to name the project “Phunks” an attempt to confuse buyers or was it also part of the parody? Does Larva Labs even have a protected trademark?’

Ryder Ripps on Foundation

At this point, all we can be sure of is, even with all of these spinoffs, the OG Punks continue to increase in popularity and value. We also know that when conceptual artist Ryder Ripps sold a high-definition copy of a CryptoPunk as his own in late June, he was also hit with a cease and desist notice from Larva Labs. Hours later, Ripps submitted a counterclaim to Foundation, the site where the piece was minted, stating that his work fell under “fair use,” and on July 1st he minted the takedown notice and letter as NFTs.

“This work is a critique of NFT and Larva Labs,” Ripps said. “The glimmer of what was once ‘punk’ about Cryptopunks is gone.”

His piece has since been relisted on Foundation, and Phunks can be purchased on Rarible for as little as 0.05 ETH.

32

Virginia Valenzuela

Vinny is a writer from New York City whose work has been published in Wired, The Independent, High Times, Right Click Save, and the Best American Poetry Blog, and in 2022 she received the Future Art Writers Award from MOZAIK Philanthropy. She is SuperRare's Managing Editor.

Hash Recipes

Negative Space

Weekly Top 10

Thoughts on Copyright

Thoughts on Copyright

Sep 1, 2020 Tech

SuperRare Editorial is open for submissions: [email protected]

Thoughts on Copyright

ambiguous
4 years ago

With each passing day humanity moves deeper and deeper into the information age. Not too many people were thinking about reality as a series of informational structures until Claude Shannon came along and proposed the discipline of information theory in 1948. Now, I’m not going to pretend to know all the nitty gritty details of the theory, but it seems to mark the beginning of the period of time when people realized that nearly every system could be explained as being a part of an on/off system of bits…ie naturalistic systems could be seen in a way that made sense from a computational perspective. This viewpoint seems like one of the final blows dealt to the materialistic system of thought that reigned so heavily throughout the enlightenment time period to the mid 1900s. Shannon’s information theory began to look at reality as a system of probabilistic events rather than a set, finite, clock as a universe Descartes type reality. Thus Shannon’s ideas were a precursor to the field of AI. Today many people take for granted what was considered to be a field shaking line of thinking in the 1940s. While most people may not know of any of Shannon’s ideas in the concrete, they are, for the most part, living in his informational outlook on reality. The amount of information created, transmitted, and received by people today dwarfs that of the average person in the 1940s by some insane orders of magnitude. We’re steeped in pools of information. The question many people are wondering is: what’s the most optimal/fairest way to manage information distribution? For the purpose of this discussion it may make more sense to ask the question: who owns the created information? If anyone.

Disclaimer: I’m riffing off the cuff of the dome here so if anything I say doesn’t pass a sagacious fact checking test, I apologize in advance. Copyright law today seems to be heavily trenched in a pre-informationally (sic) minded reality. A copyright basically says a person uniquely came up with an idea and because they came up with the idea they get to disproportionately benefit (in a financial sense) at everyone else’s expense. When copyright first came into fruition no one could really see just how valuable intellectual property would become in the age of information. Today, some of the most valuable patents and copyrights are literally just arrangements of code. Now, I am an ardent supporter of the free market and I certainly believe that creators are more incentivized to create if they are rewarded for it. This is always the argument for keeping copyright laws the same. I do believe that human curiosity and financial gain are not as coupled as most people would like to think. Humans like to explore and tinker regardless of the financial outcome. I say the foregoing statement to make light on the fact that strict financial gains are not the only drivers of human creativity. Making life more enjoyable to live actually seems like the biggest driver for innovation and creativity.

Quick side note: Times right now seem so tumultuous because it is becoming evident that humanity once again needs to re-examine our fundamental axioms of reality, our first principles. It is once again time to ask the questions: Who are we? What are we doing? Where are we going? What is important to us? The old answers to these questions seem like they are not working anymore. Re-examining first principles is extremely hard because it makes people wonder about the purpose of their lives. Peter Thiel has made the argument that technology has actually stagnated greatly in the past 30 years (other than computation speed) due to the psychological blocks preventing people from discussing first principles. He makes the claim that people would rather not think about first principles than have to bear the potential risk of beginning philosophical debates about the nature of reality within the political and psychological spheres (Note how no politicians ever touch on ontological topics, nor do the psychologists, usually. This is why I believe religious fundamentalism is regaining such a strong footing…at least in that domain there are meaning of life conversations taking place which people clearly so desperately crave. However, with any fundamentalist cause the risk of demagogues running amok always stands at the forefront of the movement, so I’m not necessarily long on fundamentalism being the best way to reintroduce first principle discussions). Again, to a lot of people, it makes sense to avoid first principle discussions given the history of war is mainly a history of people fighting over differing first principles. So, toying with first principles and violence are usually heavily correlated. That, in my opinion, is still not a good enough reason to not have the discussions because not talking about them may actually lead to more misery and confusion.

Back to the copyright discussion: It is becoming more and more clear that no human being is ever hermetically isolated from another human being. We all function in an informational web of such un-imaginable complexity. Our bodies themselves are immensely complex networks of information communication. I am beginning to see the informational sharing network of the internet in a way that is similar to how information travels in our bodies or how information travels in a mycelium network between mushrooms. This means, to me, the more that information can flow freely, the more robust, powerful, and healthy the entire system would be. Imagine if in your body certain cells decided to withhold information from other cells because they believed that their grouping of cells was entitled to said information over other cells because the information originated in their cell mind…does that sound like a system that would produce the healthiest possible body? I guess what I am saying is that if humanity begins to see people as individuals all connected to a group network, we will realize that the more open the network is, the more that individuals can thrive. We’ve already seeing the amazing effects of making academic type information freely available. Free YouTube tutorials have enlightened and enriched so many people. I believe that if copyright laws were loosened everyone would become immensely richer, and reality would become a much more intelligent place. Seen from a strictly informational perspective does it make any sense to hide things from the network if we would all benefit from sharing? I also firmly believe that opening up copyright wouldn’t destroy hierarchies of value at all…Pareto distributions seem like they are hardwired into the nature of the universe. This means that people can still be unequal even if copyright laws change dramatically…and isn’t that the concession that the current copyright proponents want to hear? An easy example of this phenomenon is this: there are countless derivative works of Rick and Morty, but no derivative work will ever be more valuable than Rick and Morty itself and it could be argued that each derivative work made of Rick and Morty actually increases the value of the original Rick and Morty because it shows that people care enough about the original to make their own works based off of it…if some person were to create a derivative Rick and Morty work that was deemed, by the marketplace, to be better than the original Rick and Morty then that person should be applauded…right? However, that pretty much never happens.

I personally have no problem with people creating derivative works of my content because I know that no one can replicate the real Ambiguous. Mimicry, to me, is a sign of respect. It is also how most people learn. Infants learn the most through the mirroring of their parents behavior. Perhaps the more people we let imitate each other the faster people will learn. I personally want to live in the most beautiful and interesting reality possible and if that means freely sharing all information I am okay with that. Trust me, I am a strong individualist and I am very interested in being wealthy. Going forward, I believe personal wealth will be more tied to sharing rather than having a knowledge advantage over people, and isn’t that a beautiful thought? In summation, I find myself asking a question I ask myself frequently: where do my ideas come from? Every artist, inventor, scientist etc. has been asked the question: “how did you come up with that?” and if we are being totally honest, the answer is almost always “I really don’t know” or “the idea just popped into my head.” I seriously do not believe that idea generation is an act of personal will. It almost seems like the ideas exist on some plane of reality and certain people have an easier time interfacing with that plane of reality. If that’s the case then no one really ever has an idea, they are given an idea. So, if ideas are seen as supra-personal concepts then perhaps no person could ever really own an idea…it wasn’t theirs in the first place to own. Doesn’t it seem silly to want to own something that was given to us so freely in the first place? I believe it is the responsibility of the artist to use our natural sensitive inclinations to tap into the idea plane/field as much as we possibly can and share the fruit with everyone. If sharing is they key to making reality more fascinating to all, then count me in. Of course, the sharing has to be done in a thoughtful and considerate way otherwise the sensitive people will be less willing to bring back the fruit that we all nourish ourselves on.

1

ambiguous

noahsimonmitchell.com
Form & Essence

Art

Tech

Curators' Choice