Web3’s early promise for artists tainted by rampant stolen works and likenesses

Jillian C. York didn’t want to be a non-fungible token.

A Berlin-based author and activist, York is also the director for International Freedom of Expression at the Electronic Frontier Foundation. For some reason — York doesn’t agree with her inclusion there — her name also appears on a list of so-called cypherpunks on Wikipedia. Cypherpunks advocate for security, encryption, privacy — three things York supported but had never made her main focus.

“Of course, I can’t edit myself off that list and I don’t identify as a cypherpunk, despite the fact that I’ve advocated for cryptography,” she said. Because she respects Wikipedia’s editing rules, York was technically forced into a group she didn’t want to join.

On Christmas Eve 2021, however, York and a number of security advocates and cypherpunks on that list appeared as NFTs on the token market OpenSea. The tokens included artist renditions of each of the cypherpunks and York’s card featured her signature buzzcut peeking out from what looked like a background of circuits and fingerprints. She was now part of another group she didn’t want to join: those whose art or work had been stolen to make NFTs. She was outraged. First, the photo the creators used was copyright-protected and not actually her property.

Second, they spelled her name wrong.

The card, which was based on a photograph taken by a professional photographer, featured the name Jillion York. Furthermore, alongside York and her colleagues, the NFT collection featured outcasts in the security space like Richard Stallman and Jacob Appelbaum. York and several other people depicted in the cards wanted nothing to do with them.

“I don’t approve of this whatsoever and would like it removed,” tweeted York on December 26. Many other supporters and victims popped up with similar comments. A back and forth with OpenSea and the NFT creator, a company called ItsBlockchain, answered requests to remove all of the NFTs.

Many saw the irony in having to visit a central location to destroy a decentralized asset.

“Pretty absurd, and distressing, that in the new realm of Web3 digital property rights people can have their identities tokenized, without their consent, and sold as tradable commodities for the profit of others,” wrote Jacob Silverman, an editor for the New Republic.

York’s ordeal was over almost as soon as it began. The creator of the NFTs, Hitesh Malviya, contacted York and others and agreed to take down the images. In a few days, they were gone, replaced by a Medium post in which Malviya wrote that his team wanted to “educate the young community in crypto about Cypher Punks and how significant they were to this date to the evolution of blockchain technology.”

“Unfortunately, many Cypher Punks were against this idea and didn’t want to participate in any way,” he wrote. “So we apologize to each and every Cypher Punk for not taking consent and creating your NFTs.”

Malviya was testy when I asked him about the NFTs and why he thought he could use private photos and information — essentially someone’s art — for this money-making venture.

“We were not aware of the likeness laws in NFTs as the market is not regulated,” he said in a direct message. “And we spent three months of resources and time to create an educational series and this NFT collection. We learnt our lessons. I hope you got your answers. No more comments.”

York’s situation and the resulting tumult of commentary is part of a growing and confusing part of web3: When everything is permissionless, when do you need to get permission to use someone’s face, art, or data? And, more importantly, what’s to stop bad actors from turning everything, from your t-shirt design to even your naked body, into an NFT?

Unfortunately, York’s situation is not new, and it’s creating an entirely new industry and toolchain aimed at protecting creators from get-rich-quick NFT creators.

Another wholesale NFT heist happened in April 2021 when artist Qing Han aka Quinni’s work was stolen and reposted on the same platform that York used, OpenSea. Quinni, beloved by fans for her artistic takes on health and chronic illness, died of cancer in February 2020. After her death, her brother and fellow artist, Ze Han, maintained her social media accounts and posted her work.

A year later, thieves posted Quinni’s work anonymously. After fan outcry, the art was taken off various NFT sites, including OpenSea, and, as of this writing, all of it has been ostensibly removed from the blockchain. Her brother refuses to take part in NFTs after the theft.

“A reminder to report any of Qinni’s artwork being sold without authorization,” wrote Ze Han on Twitter. “There are no legitimate avenues where Qinni’s art is being sold (this may change in the future).”

This case forced many creators to become educated in NFTs. Developers created a number of tools that help creators, many who have no interest in cryptocurrency at all, find their stolen art while Twitter feeds popped up to highlight the thefts.

One major figure in the online sharing community, DeviantArt, is familiar with wholesale art theft.

“We host over half a billion pieces of art on the platform,” said Liat Karpel Gurwicz, DeviantArt’s CMO. “Over the years we’ve dealt with theft and it’s nothing new. It’s something that we’ve always dealt with being an online art community even prior to there being actual regulation around it.”

Most recently the company created a bot that searches for user art on the blockchain. The bot compares art on popular NFT sites like OpenSea with images by registered users. Using machine learning, the bot finds art that looks similar to art already posted on DA’s servers. It streamlines the takedown process as well, showing artists how to contact Opensea and other providers.

DeviantArt COO Moti Levy said that the system doesn’t yet discriminate between art posted by legitimate owners and hijackers.

“If we find something that is a near-identical match, we will update our users,” he said. “In some cases, it might be their NFT. We don’t know who minted it.”

The company is finding success with the tool. DeviantArt Protect has already found 80,000 possible infringement cases with a 300% increase in notices sent between November and mid-December 2021. The company has also added anti-bot tools that keep NFT creators from swooping up whole collections of art as NFTs.

Ironically, the decentralized markets selling NFTs are starting to centralize around one or two providers. One of the most popular, OpenSea, has a full takedown team dedicated to situations like York’s or Quinni’s.

The company has taken off, reaching a stratospheric $13 billion valuation after a $300 million round in early January. The company is far and away the biggest player in the NFT market, with an estimated 1.26 million active users and over 80 million NFTs. According to DappRadar, the platform took in $3.27 billion in transactions in the last 30 days and managed 2.33 million transactions. Its nearest competitor, Rarible, saw $14.92 million in transactions in the same period.

OpenSea has been open about its place in the ecosystem and claims that it is managing takedown requests by artists as quickly as it can.

“​​It is against our policy to sell NFTs that violate the publicity rights of others,” said an OpenSea spokesperson. “We regularly enforce this in multiple ways, including delisting and banning accounts when we are notified that usage of a likeness is not authorized.”

Interestingly, the company also seems to be cracking down on deep fakes or, as OpenSea calls it, non-consensual intimate imagery (NCII), a problem that hasn’t surfaced widely yet but could become pernicious for influencers and media stars.

“We have a zero-tolerance policy for NCII,” they said. “NFTs using NCII or similar images (including images doctored to look like someone that they are not) are prohibited, and we move quickly to ban accounts that post this material. We are actively expanding our efforts across customer support, trust and safety, and site integrity so we can move faster to protect and empower our community and creators.”

OpenSea’s efforts haven’t satisfied plenty of artists, many of whom were already skeptical of NFTs before they saw their own work and colleagues’ work hijacked on their platform. Many users are still finding their art on OpenSea and, when they publicly complain, they are inundated with support scammers who purport to be official representatives of platforms like OpenSea.

Because of this mess, Levy at DeviantArt said the company is exploring NFTs but refuses to offer them yet. In fact, he thinks his users don’t want them.

“In the long term, we think that Web3 is interesting and has potential, but for us, it would have to be done in a better way and in a way that protected artists and empowered them, not in a way that puts them in danger.”