Sadie Dupuis was alerted that NFTs of her band Speedy Ortiz’s music was available on the crypto marketplace HitPiece. This came as something of a surprise to the acclaimed poet and songwriter, because she hadn’t even heard of the company before a bandmate texted her about the sale.
She wasn’t alone in this regard, as many artists, particularly many indie rockers but also stars such as Jack Antonoff took to social media to call out HitPiece for selling NFTs based on their work without their consent.
“As far as I know none of the artists on this website had granted a license or permission, or had been contacted by HitPiece seeking a license,” she says. “I have not been contacted by HitPiece—as far as I know the only ‘contacting’’ they did was requesting that complaining artists DM them, which many of my peers did requesting to be taken down.”
The move angered many in the musician community, which is already becoming increasingly wary of technology companies following Neil Young and Joni Mitchell’s break from Spotify (SPOT), even as that has more to do with what Young characterizes as podcast host Joe Rogan’s spreading of COVID-19 vaccine misinformation than about Spotify’s frequently criticized low royalty rate, which is starting to spark a burgeoning boycott amongst artists.
But moreover, the sharp backlash against HitPiece could well augur, if not quite a culture-wide backlash against NFTs, then a rising cultural sentiment in some quarters that the much-buzzed about crypto collectible should be viewed with, at best, extreme levels of suspicion.
“I don't have any personal interest in doing an NFT. An overwhelming majority of my smart friends tell me why NFTs are awful for art, artists, energy consumption, and frequently a scam for the people who buy into it,” says Dupuis. “But the bigger issue here is more about the bootlegging of intellectual property—there was a whole marketplace online entirely filled with musicians' unlicensed artwork. At best it looks like fraud.”
What Was HitPiece?
HitPiece launched in 2020, and an investigation from Rolling Stone found that the site was selling NFT (which at this point many of us know refers to non-fungible tokens, i.e. one of a kind digital files, which in this case refers to a song) from household names such as John Lennon and BTS, with corresponding, and unlicensed, photos and artwork. HitPiece was even selling an NFT from Kanye West, who has publicly slammed NFT’s.
It would seem the site’s infrastructure was created by scrapping information from Spotify’s application programming interface, which is public and available for other developers to use.
“HitPiece was co-founded by Rory Felton, a tech entrepreneur who also has a background in music, having helped form the indie label, the Militia Group, in the late Nineties,” reported Rolling Stone. “HitPiece’s core team also includes the Utah-based venture capitalist Blake Modersitzki and Michael Berrin — better known as MC Serch from the Nineties hip-hop group 3rd Bass.”
HitPiece did not respond to a request for comment from TheStreet.
You Still Need Permission In The Wild West
NFTs began getting wide-spread attention last year, and it seems some companies are playing fast and loose with the rules. As the controversy heated up, HitPiece tweeted a non-apology apology, and then took down most of its website and replaced it with the message “We Started The Conversation And We're Listening.”
It would seem that HitPiece’s business model was they would compensate artists…after they’d already sold an NFT of their music without contacting them first, though many artist on social media pointed out they have no idea how this would work.
Music copyrights are a complicated thing, acknowledges Andy Lee, of the law firm Foley & Lardner, which has an NFT Task Force. A copyright for a song, he explains, is split between the sound recording, “embodied in the master,” and the composition, “consisting of the underlying songwriting,” he says. This can make determining ownership complicated, as the rights could belong to the artist, the publishing company or a record label.
“One thing is clear, though: use of a copyrighted work in a commercial manner requires permission from the party or parties that own or control that copyright,” says Lee, “unless there’s an exception applies based on things like fair use or other free speech considerations (which don’t seem applicable here).”
Lee adds that while NFTs are a new phenomenon, the old rules still apply. “There may be some open questions about precisely how copyright law applies to any particular NFT – for example, streaming a song in connection with video or moving images implicates synchronization rights that are not present in the case of a still image,” he says.
“There may also be jurisdictional questions given the decentralized, and worldwide nature of blockchains, and challenges resulting from the anonymity inherent in many crypto transactions. New media technologies do at times present unique questions, but ultimately infringement is infringement.”
A Tough Look For NFTs?
The digital-primate face of NFTs seems to have become the buzzed-about digital art collective Bored Ape Yacht Club, which is reportedly in talks with Andreessen Horowitz for funding at a $5 billion valuation. To some observers, NFTs (and crypto in general) are an exciting investment, especially in an era when the Federal Reserve’s efforts to stabilize the market during the pandemic has made traditional forms of investment a bit too safe, unexciting or too low-yield for more daredevil investment types.
To others, NFTs are the future of digital art, and a symbol of web3 and the next evolution of the internet. NFT sales topped out at $14 billion last year, with CryptoArt pieces such as CryptoPunks selling for up to $3.1 million, and some Bored Apes going for $1.3 million.
But the monoculture days are long gone, and other people, and not just musicians, seem to have a less rosy take on the subject. Social media is filled with takes of people who view NFTs as a scam or at best a luxury item for the extremely rich, an association that might have calcified in a segment last week when Paris Hilton visited “The Tonight Show Starring Jimmy Fallon,” for a segment in which the two discussed their mutual love of Bored Ape and the ape community. (Even if you're an NFT fan, it's hard to argue it's not a very awkward conversation.) To the detractors, the HitPiece fiasco is confirming their worst criticism of the industry.
