One of the Mutant Apes was flipped for $42,000, Motherboard reported. Transaction ledgers show the Bored Ape was also sold by the scammer to a pseudonymous collector known as “DarkWing84,” who purchased it for more than $200,000. The NFT was then swiftly transferred to a collection called “GBE_Vault,” which is where it currently sits.
If the current owner “wanted to cause trouble for Seth Green they probably could, because that person becomes the holder” of the commercial usage rights, said Daniel Dubin, an intellectual property attorney at Alston & Bird LLP.
NFT copyright law can be “a particularly thorny issue,” Dubin said, and has only begun to be tested in court. A growing number of NFT projects are granting owners the right to commercially adapt their works, which has been a useful strategy for increasing brand visibility but has consequently introduced a host of legal disputes. Bored Ape Yacht Club was among the first to adopt these terms, which led to an explosion of Bored Ape merchandise and derivative NFT collections but also set the stage for bitter copyright lawsuits.
Seemingly aware of the problems his ape’s new owner could cause, Green has spent the last several days tweeting at DarkWing84 in an attempt to reclaim the Bored Ape, appealing to them again on Monday to “work it out between us.” A Green supporter even sent DarkWing84 a message by way of an ENS domain that spells out “contactsethgreenontwitter.eth.” It’s unclear if DarkWing84 knew the ape was illicitly obtained when they purchased it, and they did not respond to a tweet from BuzzFeed News.
“Ordinarily, bona fide purchasers are legally protected if they buy an item not knowing that it’s a hot item,” Eric Goldman, an intellectual property and technology law professor at the University of Santa Clara, told BuzzFeed News. But for buyers of stolen NFTs, the blockchain — which records a chain of ownership — could make it tricky for them to plead ignorance. Goldman theorized “there will be a lot of questions about whether they’re buying a stolen NFT and not doing their homework.”
The NFT marketplace OpenSea does not appear to have frozen the tokens, as it has previously done when assets were reported stolen. But all four NFTs taken from Green are now marked with “suspicious activity” warnings. A spokesperson for the company did not immediately respond to a request for comment on whether it is assisting Green. OpenSea is currently facing three lawsuits from NFT owners who lost their Bored Apes to similar phishing attacks.
Because NFTs aren’t physical goods, “it’s interesting to imagine the different ways that IP rights can be affected, and the interesting new IP issues that can arise from the fact,” Dubin said. “I think we’re just scratching the surface.”
Green has speculated that the attack could have been the machinations of “a person, a foreign financial conglomerate, or some massive scam house somewhere,” but assured VeeCon attendees that he is working with authorities to retrieve his NFTs. “Guys, if there’s a door to kick in, I promise I’m gonna kick in the door for us.”