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  • Writer's pictureKyle

After An Ape Is Burned, The BAYC and Opensea Talk Ape Intellectual Property and Ownership

After one Bored Ape Yacht Club member sent an ape to a burn address, conversations regarding IP and ownership took over crypto twitter Saturday night.

As the Bored Ape Gazette previously reported, BAYC member, taylorwtf sent his Bored Ape #8860 to a burn address Thursday according to Opensea data and his Twitter account.

After burning the ape, Taylor created an auction for the burnt ape that was taken down. Later Taylor posted on Twitter about the situation.

“The @BoredApeYC has filed a copyright infringement against me with @opensea

and has had the auction pulled for the Burnt Ape,” Taylor tweeted. “I consider this an act of war against performance artists. In response I’ll be locking all of my monkeys and pups in cages and torturing them.”

The Bored Ape Gazette reached out to Opensea’s Nate Chastin for clarification on the situation.

Chastin told the gazette the auction was taken down after the BAYC requested its removal but it was not an official DMCA request.

“Bored Ape Yacht Club contacted me this morning requesting the removal of this item and its auction from the OpenSea platform,” Chastin said. “Bored Ape Yacht Club grants ape owners full derivative rights over the ape artwork, but in this case the seller had transferred his ape to the burn address prior to minting the listed item, so he was not the owner at the time the derivative work was created. They felt this piece was in violation of their copyright for that reason. I reached out to Taylor explaining the situation and he agreed to take the auction down. Bored Ape Yacht Club grants IP rights to the owner of the ape and even allows derivative work to be created by a non-ape-owner if the owner of that ape approves it, but in the case of the burn address, no one controls the address and so no one can grant approval. In these gray areas, the original content creator has the strongest claim to the IP. One clarification I wanted to make: This was not an official DMCA takedown request - this was Bored Ape Yacht Club reaching out requesting that we remove the listing in order to protect their copyrighted work, which we care deeply about doing for creators at OpenSea.”

After this response, the gazette asked Chastin for further clarification on what an ape owner can do with their ape. Chastin told the gazette, owners can do anything so long as they are in the possession of the ape.

“NFT copyright law is not my domain of expertise,” Chastin said. “My sense is that had this been minted when the owner was still in possession of the ape, it would have been allowed as he would have had derivative rights over the ape. I would have to defer to BAYC on their official position, but that's my understanding.”

Later Saturday evening, the BAYC responded to the situation posting a the following announcement on their Discord.

In other news and in response to some of the drama today , we did want to reiterate our position on the BAYC commercial license,” The BAYC said. “Disclaimer; we’re not lawyers. But if you own an ape NFT, you can mint a derivative of it, or give others permission to do so. If you don’t own the ape, you can’t. Rights are conveyed at the moment of minting the derivative. So if you give someone the right to mint a derivative, and they do while you own the ape, it’s all good, even if you later sell the ape. That derivative gets grandfathered in. We didn’t think this was that confusing, but we’re just four dudes who haven’t slept in days.”

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