Note: The opinions mentioned in this article are solely that of the author, who is not a lawyer but a student studying Entertainment Industry Management at Carnegie Mellon University.
No News is Bad News
There is ongoing legal debate around Quentin Tarantino's latest project, an exclusive behind-the-scenes NFT collection based on the 1994 Miramax blockbuster hit "Pulp Fiction," published in December 2021 on Opensea by SCRT Labs. A California lawsuit will determine whether Tarantino's plan is too cavalier, and whether Miramax should receive a cut of the sale.
Regardless of the settlement, the lawsuit has diminished interest surrounding Tarantino's NFT auction. Seven of Tarantino's NFTs provide access to archival and never-before-seen Pulp Fiction footage, which Miramax technically owns. It is important to mention that NFT ownership does not imply intellectual property ownership, so Tarantino is not selling media, but selling access to this media, which Miramax may have the right to deny. In other words, instead of confiscating the entire NFT collection, Miramax could simply deny the owners' access to the archival footage. The NFTs include access to more than just video clips, but the inclusion of these archival clips may prove costly for Tarantino and SCRT Labs.
A Non-Consensual Campaign
In November, without Miramax's consent, Tarantino launched a media campaign announcing an upcoming public auction of Pulp Fiction NFTs. At the NFT NYC conference on November 2, 2021, without using Pulp Fiction-related media or signage, Tarantino announced his collaboration with SCRT Labs (the Secret Network) to digitally copy seven scenes from the original handwritten Pulp Fiction screenplay, mint each copy as a "Secret NFT," and sell them each on Opensea to the highest Ethereum bidder.
This was a big moment for Tarantino fans. The screenwriter/director/producer was offering access to a copy of his personal handwritten screenplay for an iconic, successful movie. The NFTs were said to include “secret” audio commentary and hand-drawn sketches from Tarantino. CNN Business claimed the NFTs offer access to never-before-seen clips from the film. The official @TarantinoNFTs account quickly gained 20,000 twitter followers.
Tarantino's Reserved Rights
Almost thirty years ago, when Miramax bought Tarantino's Pulp Fiction screenplay in 1993, the original option agreement stipulated that Tarantino retained a limited series of reserved rights. These production rights include:
“... soundtrack album, music publishing, live performance, print publication (including without limitation screenplay publication, ‘making of’ books, comic books and novelization, in audio and electronic formats as well, as applicable), interactive media, theatrical and television sequel and remake rights, and television series and spinoff rights.”
Most crucially, reserved rights give Tarantino the option to publish the screenplay, the “making-of” book, and the director’s commentary. There is no mention of digital NFT publishing rights, but Tarantino does have the right to publish “without limitations” in “electronic formats.” Tarantino published print and digital copies of the Pulp Fiction screenplay before (see below), but never before has he displayed or published his handwritten copy of the script.
Figure 1: Cover art for 1994 Pulp Fiction screenplay publication. Source: Amazon.
This lawsuit may change the definition of U.S. copyright and trademark infringement. Notice the credit to Miramax in the lower left corner of Figure 1. In the past, Tarantino gave credit to Miramax for the use of copyrighted materials, giving public notice of its consent. This credit creates an assumption that Miramax was notified of the creation of these works as well. Today, Tarantino’s ambiguity may lead the public to mistakenly believe Miramax was involved with the NFT drop. This misconception could be ample ground for trademark infringement.
According to the 1993 option agreement, Tarantino may have the right to mint and market NFTs that make reference to the movie [Exhibit A, p.24]. Tarantino maintains the “right to use the title of the film in connection with the exploitation of the Reserved Rights.” While exercising reserved rights, Tarantino “… may include literary or character elements used in the film.” While this allows Tarantino to market his NFTs using the Pulp Fiction name and implicit Pulp Fiction references, the agreement does not explicitly grant the use of clips, still frames, or any media or archival video footage, all of which Miramax owns and manages.
Lawsuit SpoilS Demand For "Tarantino NFTs"
Court decisions take a few months to produce (the case was filed mid-November). Meanwhile, investors remain skeptical of these “Secret NFTs.” The terms of sale are unclear. A haughty NFT collector could get stuck paying full price for an attenuated product.
Negative press coverage might be beneficial for a traditional public memorabilia auction, but today's NFT marketplace is so risk-averse that big fish buyers may not bite at all. Most garish is a Pulp Fiction "Milkshake Scene" NFT priced at more than $200,000 USD (50 eth). After one week of auctioning, the milkshake scene NFT listing had just 14 views, zero bidders and minimal public interest. At the end of 2021, the 13-part Tarantino NFT collection had raised only $22,000.
likely outcome = settlement
The original option agreement grants Tarantino the right to publish his thoughts and opinions on the making of Pulp Fiction, but Miramax has the right to 25% of any merchandising revenue raised by Tarantino’s use of copyrighted film material [Exhibit A, p. 26]. Miramax also claims the legal right to “develop, market and sell NFTs relating to its deep film library” [M v T; p. 3 line 14]. This places Tarantino’s actions in direct competition with Miramax, even though Miramax does not yet sell Pulp Fiction NFTs.
But is Tarantino selling merchandise? Does an NFT count as memorabilia? Functionally, an NFT is a one-of-a-kind digital asset – a collector’s item. Ownership gives a token holder exclusive access to the token’s underlying media. NFT ownership could include IP rights to digital files, but these NFTs do not mention them.
Tarantino’s lawyer, Bryan Freedman, argues that the NFT collection is not merchandise, but a limited digital print publication. Miramax counters that the NFT sale cannot be considered a publication because it is marketed as a one-time transaction. Miramax is suing Tarantino and SCRT Labs for a breach of contract, copyright infringement, trademark infringement, and unfair competition [M v T; p. 1 lines 20-24].
If the media auction was brokered through a personal website instead of an NFT transaction, Tarantino would probably still have to mention Miramax’s involvement somewhere on the site. He might even have to add a disclaimer watermark onto the digital copies of the screenplay, so as to protect the integrity of Miramax’s trademark. Miramax would likely deserve a portion of the proceeds as well.
Will Tarantino make more NFTs?
So what about Tarantino’s other movies? Does he own any of them? As announced on November 2, 2021 at NFT NYC, Tarantino will begin to regain copyright ownership of his films, a new movie regained every two or three years, one-by-one, starting with Jackie Brown in 2024. Once he owns those copyrights, expect to see a flood of multimedia Jackie Brown NFTs.
Today’s NFT world is governed by crude and antiquated laws surrounding copyright and trademark ownership. Hopefully this lawsuit establishes new legal boundaries and guidelines for future cases. In the meantime, NFT collectors should stay wary of ambiguous claims and unclear terms.
UPDATE: ONLY 1 TARANTINO NFT Sold
As of February 11, 2022, there has only been one Pulp Fiction NFT sold publicly. The “Royale with Cheese” script sold for $1.1 million in Ethereum to an anonymous NFT collective @anonDAO. This transaction was not hosted on Opensea as originally planned, but on the Secret Network, an anonymous NFT trading platform created by SCRT Labs. After the sale, the remaining 6 NFTs were scheduled for auction in late January, but were cancelled shortly after. SCRT Labs cited unstable crypto market concerns and Ethereum volatility in their decision. The official @TarantinoNFTs account posted this statement on Twitter on January 28th:
Screenshot of Tarantino NFTs’ decision to cancel the remaining NFT auctions. Screenshot by author.
It is undetermined whether the sale of these NFTs were cancelled due to volatile market conditions or due to the impending Miramax-Tarantino lawsuit expected to go to court later in February. It is equally unclear if, or when, these sales will resume.
[For more on blockchain adoption in the film industry, check out this article on Smart Contracts and Distribution Waterfalls.]
+ Resources
Chaudri, Abida. 2021. “NFTs and Copyright Infringement: Miramax v Tarantino.” Inside Tech Law. https://www.insidetechlaw.com/blog/nfts-and-copyright-infringement-miramax-v-tarantino.
Costa, Cameron. 2021. “Quentin Tarantino to Offer Seven Uncut Scenes from ‘Pulp Fiction’ as NFTs.” CNBC. November 2, 2021. https://www.cnbc.com/2021/11/02/quentin-tarantino-to-offer-seven-uncut-scenes-from-pulp-fiction-as-nfts.html.
Diaz, Johnny. 2021. “Miramax Sues Quentin Tarantino over Planned ‘Pulp Fiction’ NFTs.” The New York Times, November 17, 2021. https://www.nytimes.com/2021/11/17/business/miramax-tarantino-nft-pulp-fiction.html.
Faughnderstaff, Ryan. 2021. “The ‘Pulp Fiction’ NFT Fight Isn’t Really about NFTs.” The Los Angeles Times, November 23, 2021. https://www.latimes.com/entertainment-arts/business/newsletter/2021-11-23/why-quentin-tarantino-may-have-a-case-in-pulp-fiction-nft-suit-the-wide-shot.
Gamma Research and Development. 2021. “Quentin Tarantino Revealed as Iconic Artist behind First-Ever Secret NFTs, Showcasing Never-Before-Seen Work Revealed Only to NFT Owner.” Gamma Research and Development. November 2, 2021. https://www.globenewswire.com/news-release/2021/11/02/2325448/0/en/Quentin-Tarantino-Revealed-as-Iconic-Artist-Behind-First-Ever-Secret-NFTs-Showcasing-Never-Before-Seen-Work-Revealed-Only-to-NFT-Owner.html.
Gardner, Eriq. 2021. “Miramax Wins Lawsuit Over ‘Pulp Fiction’ Movie Poster.” Hollywoodreporter.Com. November 29, 2021. https://www.hollywoodreporter.com/business/business-news/miramax-wins-lawsuit-pulp-fiction-poster-1235053811/.
Garton, Will, and Farah Mukaddam. 2021. “NFTs and Intellectual Property Rights.” Norton Rose Fulbright. https://www.nortonrosefulbright.com/en-gb/knowledge/publications/1a1abb9f/nfts-and-intellectual-property-rights.
Guardian staff reporter. 2021. “Quentin Tarantino Is Selling Pulp Fiction All over Again – This Time as Art.” The Guardian, November 17, 2021. https://www.theguardian.com/film/2021/nov/17/quentin-tarantino-is-selling-pulp-fiction-all-over-again-this-time-as-art.
Hajric, Vildana. 2021. “Quentin Tarantino to Auction Seven Unseen ‘Pulp Fiction’ Scenes as NFTs.” Bloomberg News, November 2, 2021. https://www.bloomberg.com/news/articles/2021-11-02/tarantino-to-auction-seven-unseen-pulp-fiction-scenes-as-nfts?sref=qpwbmgSU&utm_content=crypto&utm_campaign=socialflow-organic&utm_source=twitter&utm_medium=social.
Handler, Samantha. 2021. “Tarantino NFT Suit Previews Rights Battles in Future Contracts.” Bloomberglaw.Com. November 23, 2021. https://news.bloomberglaw.com/ip-law/tarantino-nft-suit-raises-questions-about-ip-rights-in-contracts.
Kessler, Carly A. 2021. “NFTs Are Reshaping Artists’ IP Rights.” Bloomberglaw.Com. March 24, 2021. https://news.bloomberglaw.com/us-law-week/nfts-are-reshaping-artists-ip-rights.
Koonce, Lance, and Louise Carron. 2021. “Pulp Friction: Miramax, Tarantino NFT IP Rights under the Gun.” Bloomberglaw.Com. December 2, 2021. https://news.bloomberglaw.com/ip-law/pulp-friction-miramax-tarantino-nft-ip-rights-under-the-gun.
Kurutz, Steven. 2021. “The Curious World of NFT Real Estate and Design.” The New York Times, May 25, 2021. https://www.nytimes.com/2021/05/25/fashion/selling-virtual-real-estate.html.
Lawler, Richard. 2021. “Space Jam: A New Legacy Launch Includes a 91,000 Item NFT Tie-In.” The Verge. July 12, 2021. https://www.theverge.com/2021/7/12/22574752/niftys-nft-space-jam-lebron-james-warner-looney-tunes.
Levin, Tim. 2021. “NFTs Could Be the Future of Collecting — or a Huge Bubble. We Talked to 3 Experts about the Risks to Consider before Buying In.” Business Insider, March 13, 2021. https://www.businessinsider.com/what-are-risks-of-investing-in-nft-2021-3.
Loayza, Frank Gerratana Michael Graif. n.d. “Quentin Tarantino’s Secret NFTs.” Jdsupra.Com. Accessed December 12, 2021. https://www.jdsupra.com/legalnews/quentin-tarantino-s-secret-nfts-3851773/.
Maddaus, Gene. 2021. “Quentin Tarantino’s Attorney Responds to ‘Pulp Fiction’ NFT Lawsuit: ‘Miramax Is Wrong.’” Variety.Com. Variety. November 16, 2021. https://variety.com/2021/film/news/miramax-tarantino-pulp-fiction-nft-1235113383/.
Martin, H. 2021. “Hollywood’s NFT Studios Aims to Create Feature Films on the Blockchain.” Nftevening.Com. December 2, 2021. https://nftevening.com/hollywoods-nft-studios-aims-to-create-feature-films-on-the-blockchain/.
Miramax, LLC, Plaintiff, vs. Quentin Tarantino; Visiona Romantica, Inc,; and DOES 1-50, Defendants. 2021 United States District Court - Central District of California https://s3.documentcloud.org/documents/21111461/miramax-tarantino-nft.pdf.
Moore, Schuyler. 2021. “Non-Fungible Tokens (NFTs) Meet Hollywood.” Forbes Magazine, March 18, 2021. https://www.forbes.com/sites/schuylermoore/2021/03/18/non-fungible-tokens-nfts-meet-hollywood/.
Moss, Aaron. 2021. “Miramax, Tarantino and a Fight over Bright Shiny Objects.” Copyrightlately.Com. November 21, 2021. https://copyrightlately.com/miramax-tarantino-and-a-fight-over-bright-shiny-objects/.
“New Klapcoin Cryptocurrency Aims to Help French Cinema Find Funding.” 2021. Euronews.Com. December 1, 2021. https://www.euronews.com/next/2021/12/01/new-klapcoin-cryptocurrency-aims-to-help-french-cinema-find-funding.
Pallotta, Frank, and CNN Business. 2021. “Miramax Is Suing Quentin Tarantino over ‘Pulp Fiction’ NFTs.” CNN, November 17, 2021.
Pascual, Ashley. 2021. “What Is a Film Rights Acquisition Agreement?” Beverlyboy.Com. July 12, 2021. https://beverlyboy.com/filmmaking/what-is-a-film-rights-acquisition-agreement/.
Patten, Dominic. 2021. “Quentin Tarantino Wants ‘Offensively Meritless’ Miramax NFT Suit Tossed out; Studio Sued Oscar Winner over ‘Pulp Fiction’ Script Auction.” Deadline.Com. Deadline. December 9, 2021. https://deadline.com/2021/12/quentin-tarantino-nft-lawsuit-dismissal-motion-pulp-fiction-miramax-1234888031/.
Pollick, Michael. n.d. “What Does ‘All Rights Reserved’ Mean?” Infobloom.Com. Accessed December 12, 2021. https://www.infobloom.com/what-does-all-rights-reserved-mean.htm.
“Pulp Fiction (1994) - Financial Information.” 1994. The-Numbers.Com. September 10, 1994. https://www.the-numbers.com/movie/Pulp-Fiction.
Raustiala, Kal, and Chris Sprigman. 2021. “Guest Column: Tarantino vs. Miramax — behind the NFT ‘Pulp Fiction’ Case, and Who Holds the Advantage.” Hollywoodreporter.Com. The Hollywood Reporter. November 24, 2021. https://www.hollywoodreporter.com/business/digital/tarantino-miramax-pulp-fiction-nft-1235052378/.
Robertson, Adi. 2021a. “An NFT of Jay-Z’s First Albim Has Sparked a Record Label Lawsuit.” Theverge.Com. June 21, 2021. https://www.theverge.com/2021/6/21/22543753/jay-z-nft-lawsuit-reasonable-doubt-roc-a-fella-damon-dash.
———. 2021b. “Miramax Sues Quentin Tarantino over Pulp Fiction NFTs.” Theverge.Com. November 17, 2021. https://www.theverge.com/2021/11/17/22787216/miramax-pulp-fiction-quentin-tarantino-nft-lawsuit.
Sheen, Mike. 2021. “Scorsese Producer Secures Backing for First Ever Films Funded by NFTs.” This Is Money. December 1, 2021. https://www.thisismoney.co.uk/money/crypto/article-10262035/Scorsese-producer-secures-backing-films-funded-NFTs.html.
“Tarantino NFT Collection.” n.d. Tarantinonfts.Com. Accessed December 12, 2021. https://tarantinonfts.com/.
Tarantino, Quentin, and Louis Descioli [cred]. 2021. “Tarantino at NFT.NYC.” Youtube. November 2, 2021. https://www.youtube.com/watch?v=egPjm8yjsaE.
U.S. Patent and Trademark Office. n.d. “About Trademark Infringement.” Uspto.Gov. Accessed December 12, 2021. https://www.uspto.gov/page/about-trademark-infringement.
Wright, Keira. 2021. “Miramax Sues Tarantino over ‘money Grab’ Pulp Fiction NFTs.” Cointelegraph. November 17, 2021. https://cointelegraph.com/news/miramax-sues-tarantino-over-money-grab-pulp-fiction-nfts.
Zyskind, Guy, Quentin Tarantino, Regina Harsanyi, Lady PheOnix, Mike Novogratz, Tom Bilyeu, Coin Artist, and Gmoney. 2021. “Quentin Tarantino, Tom Bilyeu, Mike Novogratz & More on NFTs & Art.” Youtube. November 3, 2021. https://www.youtube.com/watch?v=QD61k5R7X7c.