By Pranit Biswas and Ananyaa Banerjee
Quentin Tarantino, the writer of popular screenplays such as Pulp Fiction, Kill Bill, Once Upon a Time in Hollywood and Django Unchained, has a cult following for his work across the world. In an attempt to monetize this fame and jump on the bandwagon of NFT sales, Tarantino had recently announced his plan to put upto 7 NFTs (Non Fungible Tokens) for sale. The essence of the NFT is going to be a scan of the original written script for the Pulp fiction movie, along with a recording of Tarantino talking about the scene the NFT is from. He has in fact created a separate website for the same called ‘Tarantino NFTs’ and the advertising of the NFTs are limited to his name rather than the Pulp Fiction movie. The purchaser would get ‘secret’ information with each NFT along with the freedom to do what they want with that information.
The lawsuit in question has two parts: Firstly, Miramax is claiming that Tarantino is infringing Miramax’s copyright over the Pulp Fiction movie and secondly, Tarantino has committed Trademark infringement by using Pulp Fiction’s characters on his website. Miramax’s objection to the NFT vis-à-vis copyright is that even though Tarantino has the right to “publish” the screenplay, the right doesn’t extend to NFTs. They clearly state in the Plaint “… ”
On the website, Tarantino has used caricatures to depict the main characters of the film, which Miramax has alleged is trademark infringement as Tarantino using the brand imagery of Pulp Fiction, which will mislead customers into believing that the NFTs are being offered by Miramax. At the time of writing this article, all such imagery has been taken down and replaced by generic images of a milkshake and a man in a suit.
What kind of property is an NFT?
A non-fungible token (NFT) is essentially code, which is a representation of an original work. It is stored in the form of a link and represents digital work (which could be in turn, a representation of a physical work as well). NFTs can represent art, videos, music, tweets, and even images of real-life work. The right of the NFT corresponds to the right of the original work. It is important to note that a sale of NFT does not transfer the rights to the original work. In this case, irrespective of whether the rights are with Miramax or Quentin Tarantino, the sale ultimately will not transfer the rights to the purchaser of the NFT.
Legally, an NFT is just code and not a work in itself. The question of copyright is regarding the underlying work, in this case the screenplay.
Rights as declared in the contract
The original contract was attached with Miramax’s plaint, and contained specific clauses regarding the rights vested with each party to the suit. Under the original document, Tarantino grants Miramax all rights, apart from a few reserved rights he keeps. Tarantino’s Reserved Rights were limited to the “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.”
Miramax possesses all rights (including all copyrights and trademarks) in and to the Film (and all elements thereof in all stages of development and production) now or hereafter known including without limitation the right to distribute the Film in all media now or hereafter known (theatrical, non-theatrical, all forms of television, home video, etc.)”
Meaning of specific terms in various legislations
In terms of legality and intellectual property,
the question that arises herein is the very meaning of the term ‘publication’ and what actions would constitute publication and which ones won’t. In India, “publication” means making a work available to the public by issue of copies or by communicating the work to the public.  The NFT thus, is clearly communicating the screenplay to the public, or at least a few chosen pages of it. The contract between the parties specifically mentions the word ‘publication’, and grants its rights to Tarantino including print as well as screenplay publication. Considering the lack of jurisprudence regarding NFTs in India, it is difficult to devise a more accurate estimation of how India courts would look at this issue. The U.S. Copyright Office considers movie scripts to be works of performing arts, rather than literary works.
Merit in the arguments from both sides
It seems then, that Tarantino is within his ‘reserved rights’ when he chooses to publish the screenplay whether in electronic format or audio. His right originated in his contract, and any such publication cannot cause a breach of contract. If the screenplay publication is a right of Tarantino, so is the right to the screenplay itself, and he cannot infringe his own right.
It is of no question that Miramax owns the visual representations of the characters of the movie, which were played by Uma Thurman, Samuel Jackson and John Travolta. Thus, the suit for trademark infringement filed for the illustrations on the website may have merit and eventually succeed.
Another point of discussion regarding this suit, is that of the trademark of ‘Pulp Fiction’. As per the US Standard, Miramax has to demonstrate that there is a likelihood of confusion for the consumers between Tarantino and Miramax. In the USA, the Lapp Test is used to establish if there is a likelihood of confusion between two trademarks. Liability for trademark infringement under the Lanham Act is fundamentally predicated on a determination that the use of one brand creates a likelihood of confusion with another previously recognized trademark. This claim might be difficult to prove on the basis of US precedence. The standard states that “use,” “in commerce,” and “likelihood of confusion” are three distinct elements necessary to establish a trademark infringement claim. The likelihood of confusion doesn’t exist with respect to the cult classic Pulp Fiction, but rather with Tarantino and Miramax. In the case of Dastar Corp. v. Twentieth Century Fox Film Corp., the Supreme Court opined that “creator of the content” is an important factor when considering the ‘origin’ of the work. Additionally, the issue of whether trademark law applies to digital files is still being considered in American jurisprudence.
The Indian case of D.M. Entertainment Pvt. Ltd. v Baby Gift House and Ors. has facts similar to the present case as far as trademark infringement is concerned. Baby Gift House was selling dolls that imitated the popular singer, Daler Mehndi.
It is clear that the consequences faced by Tarantino would be different in the systems of India and the United States. In India, it is too early to answer questions regarding NFTs since jurisprudence hasn’t caught up to technological innovations as of yet. However, the copyright is stable in both cases even though the question of Trademark infringement will have to be answered separately.
 539 U.S. 23.
 Section 3, The Copyright Act, 1957.