Key points
- NFTs complicate the authenticity of works: minting a token does not guarantee legitimate provenance, which makes identifying the authors difficult.
- Minting or distributing tokens without authorisation exposes rights holders to infringements of their intellectual property rights.
- The rights holder can bring a civil infringement action to stop the infringement and obtain compensation for the loss suffered.
- French courts can order the removal or blocking of the disputed content, and platforms can be held liable.
- The French Intellectual Property Code allows criminal prosecution, and a complaint with civil-party petition makes it easier for the authorities to step in.
- The blockchain ledger traces the transactions linked to an NFT, but the use of pseudonyms limits the legal identification of the issuers responsible.
The rise of NFTs raises new challenges for intellectual property. These digital tokens, now found in many sectors, offer opportunities for authentication but also expose rights holders to greater legal risks linked to counterfeiting. The fight against counterfeiting must now take account of the practices brought about by emerging technologies such as blockchain and artificial intelligence. Knowing how to respond to counterfeiting through NFTs requires an analysis of the legal tools available and of the limits rights holders face.
Understanding NFT counterfeiting
The rapid expansion of NFTs complicates the notion of the authenticity of works under French and European law. Issuers often struggle to establish the real origin of a piece of content, because minting a token does not always guarantee legitimate provenance. This uncertainty makes identifying the authors harder in a decentralised environment.
Using NFTs to represent protected creations exposes rights holders to risks of digital infringement. Some players mint or distribute tokens without prior authorisation, giving rise to various forms of infringement of intellectual property rights. Faced with this development, existing strategies need to be adapted and new legal instruments used.
What legal remedies are available against NFT counterfeiting?
In the fight against counterfeiting, several courses of action are open to rights holders faced with unauthorised uses of their works through NFTs. Under French law, reproducing, performing or distributing a work in breach of the author’s rights is the criminal offence of infringement (Article L. 335-3 of the French Intellectual Property Code (Code de la propriété intellectuelle) (in French)), which also gives rise to the civil liability of the infringer, including where these acts involve emerging technologies. To obtain suitable support in a dispute relating to digital justice, it may be worth consulting an NFT lawyer.
Possible civil actions
A rights holder can bring an infringement action where an NFT infringes its exclusive right, whether copyright, a trademark or a design. The aim is to stop the infringement and obtain compensation for the loss suffered. In copyright matters, the president of the Judicial Court (tribunal judiciaire) can order any measure capable of preventing or stopping the online infringement, against any person able to remedy it (Article L. 336-2 of the Intellectual Property Code (in French)). The liability of platforms hosting infringing NFTs can also be sought where they failed to promptly remove content whose unlawful nature they knew of.
A prior legal audit of the rights portfolio and of the methods of commercialisation is essential to strengthen your position. This step clarifies the extent of the protection available and helps anticipate the legal risks linked to blockchain. A well-conducted audit also makes it easier to identify the issuers and the infringing distribution channels.
The role of criminal law in protection
In cases of serious infringement, the Intellectual Property Code allows criminal proceedings to be brought against the persons involved in creating or distributing counterfeit NFTs. This concerns both the individuals who minted the disputed tokens and certain platforms if their involvement is proven. A criminal complaint can target the manufacture, circulation or public performance of the content concerned. Infringement of works is punishable by three years’ imprisonment and a fine of €300,000, or seven years and €750,000 when committed by an organised gang (Article L. 335-2 of the Intellectual Property Code (in French)).
The rights holder can first file a criminal complaint with the public prosecutor (procureur de la République). If the prosecutor decides not to prosecute, or three months after the complaint, the rights holder can file a complaint with civil-party petition before the investigating judge (Article 85 of the French Code of Criminal Procedure (Code de procédure pénale) (in French)). This route sets the public prosecution in motion and allows the rights holder to claim compensation for the damage suffered.
Blockchain ledger and identifying NFT issuers
The blockchain is a tool for security and transparency, but it also raises new challenges for identifying the issuers responsible for counterfeiting. Thanks to the ledger, the transactions linked to a specific NFT can be traced publicly, which helps investigations when an offence is committed.
However, the use of pseudonyms or cryptographic addresses often prevents a legal identity from being linked directly to a user account. This lack of identifying information sometimes limits the effectiveness of court proceedings and calls for constant adaptation of investigative techniques.
Technical identification tools linked to the blockchain
Analysing blockchain ledgers and using technical expertise make it possible to trace an electronic transaction back to its origin. Specialist providers offer blockchain analysis tools which, combined with a legal audit, help link suspicious behaviour to identifiable entities.
Advances in artificial intelligence are enhancing these tools. They improve the ability to detect series of abnormal transactions and support the fight against counterfeiting by automating the identification of potential fraud. However, working with qualified providers remains essential to make effective use of these analysis tools.
Liability of platforms hosting NFTs
Platforms that distribute or sell NFTs play a central role in the circulation of authentic or counterfeit works. A hosting provider escapes liability only if it does not have actual knowledge of the unlawful content or if it acts promptly to remove it as soon as it becomes aware of it (Article 6 of Regulation (EU) 2022/2065 on digital services). Notices sent to platform administrators are therefore decisive in triggering removal or suspension measures.
Regulation (EU) 2022/2065 on digital services also requires hosting providers to put in place a mechanism for reporting illegal content (Article 16), which strengthens legal certainty for rights holders. NFTs in principle remain outside Regulation (EU) 2023/1114 (MiCA), which excludes unique, non-fungible crypto-assets (Article 2(3)): the legal risks of intermediaries in the NFT ecosystem therefore fall mainly under general law and platform law.
How to prevent NFT counterfeiting risks
Anticipating disputes involves including appropriate contractual clauses and regularly monitoring how digital assets are used. Rights holders should favour technical certifications and document their creations precisely before any exploitation in NFT form. Adding explicit metadata strengthens the traceability and authenticity of works put online.
Raising awareness among stakeholders, artists and collectors alike, remains essential to prevent the legal consequences of unlawful or questionable distribution. It is also important to seek professional support at each stage to ensure compliance with current standards. These precautions significantly reduce the legal risks linked to using NFTs to exploit protected works.
