FC Barcelona to auction Johan Cruyff’s “Phantom Goal” in the Metaverse

We have recently seen a spate of non-fungible token (NFT) offerings related to the sports and entertainment fields, with many sports clubs and celebrities seeking to exploit the new opportunities presented by the increased popularity of NFTs.  Many of these NFT releases, however, have been unclear as to what rights are actually associated with the NFT itself - for instance, does the purchaser of a Serie A NFT collectible issued by OneFootball gain any rights in the copyright subsisting in the video content associated with that NFT?

This issue may also be faced by FC Barcelona's release of their first "art" NFT, which comprises an original audio-visual digital artwork depicting Johann Cruyff as a weightless, molten-gold statue flying through the air to score a goal against Atletico Madrid in 1973.  The artwork in question is an original copyright work, to be auctioned at Sotheby's as if it were a more traditional artwork.  Due to the considerable independent skill and effort expended in its creation, the new digital artwork created should enjoy copyright protection.  However, the digital content in question may well be based on the well-known television recording of Cruyff's goal, and the new artwork might therefore amount to a reproduction of that recording - whether this is the case or not will depend on whether the new artwork amounts to a substantial reproduction of the recording.

Accordingly, whilst it is to be expected that the winner of the auction will acquire the "new" copyright in the artwork in question, the owner will only enjoy exclusivity in the audio-visual work and the ability to control its reproduction if the artwork does not amount to a substantial reproduction of the original television recording (or if a suitable licence has been secured from the owner of the copyright in the original television recording).  

It is therefore imperative, when considering the release or purchase of an NFT, to consider carefully the intellectual property rights underlying the content in question and ensure that any necessary assignment or licence of IP rights has ben secured.