On October 25, 2023, the United States District Court for the Central District of California awarded NFT creator Yuga Labs, Inc. (“Yuga”) $1.6 Million after counterfeits of its nonfungible tokens (NFTs) were sold online. Yuga owns the Bored Ape Yacht Club ("BAYC") collection of NFTs that feature cartoon monkeys that have sold for upwards of $3 million each at auction. The case arose from Defendants Ryder Ripps and Jeremy Cahen selling knockoff BAYC NFTs branded as "Ryder Ripps BAYC" or “RR BAYC.” Defendants sold exact copies of the BAYC NFT images with their own unique blockchain IDs purportedly as a form of satirical commentary. However, the court did not agree that the Defendants’ conduct was an act of free speech. This case highlights the complexity of free speech as it applies to the ever-changing digital landscape.
NFTs are digital assets that come in many forms, including art, music, videos, memes, gaming content, and more. NFTs are frequently traded in exchange for cryptocurrency and stored on the blockchain. While NFT values have since plummeted, the market for NFTs was valued at $40 Billion in 2021 according to Bloomberg. NFT Market Surpassed $40 Billion in 2021, New Estimate Shows - Bloomberg.
In this California case, Defendants argued that RR BAYC was “satirical conceptual art” – an expressive work protected under the First Amendment. They claimed the art was aimed at bringing attention to what they believed to be racist imagery and “dog whistles” in Yuga’s art. Yuga Labs, Inc. v. Ripps, 2023 U.S. Dist. LEXIS 192487, *8, 2023 WL 7089922. The court remarked that the bar for satirical art using copyright marks is fairly low, but not infinitely low. In the court’s view, “Defendants’ sale of RR/BAYC NFTs is no more artistic than the sale of a counterfeit handbag.”
Unpersuaded by the free speech arguments, the court found the Defendants’ conduct was not an expressive work because it was exactly the same product as what it purportedly sought to critique. The absurdity of the Defendants’ position was expressed succinctly by Yuga’s president, Greg Solano, during cross-examination at trial, who remarked, “it can’t be a parody of itself.” The court found Defendants had intentionally used the BAYC trademarks in an effort to profit off of Yuga's intellectual property.
Accordingly, the court found Yuga was entitled to disgorgement of Defendants’ profits (about $1.4 million), $200,000 for cyber-squatting, and a permanent injunction against Defendants to prevent them from using the BAYC marks. After finding this to be an exceptional case because the Defendants acted in bad faith and were obstructive and evasive throughout litigation, the court also awarded attorney’s fees. In total, the damages owed to Yuga amounted to over $1.6 million. This decision strongly discourages knockoff NFT trading by maintaining robust protections for intellectual property rights in digital markets.