Actor and producer Seth Green was robbed of several NFTs this month after succumbing to a phishing scam that inadvertently threw a monkey wrench into the plan for his new animated series. The forthcoming show was developed from characters in Green’s expansive NFT collection, but in light of the recent hack, the project’s blatant crypto optimism has become a tragically ironic reminder of the industry’s shadier side.
On Saturday, Green teased a trailer for White Horse Tavern at the NFT conference VeeCon. A twee comedy, the show seems to be based on the question, “What if your friendly neighborhood bartender was Bored Ape Yacht Club #8398?” In an interview with entrepreneur and crypto hype man Gary Vaynerchuk, Green said he wanted to imagine a universe where “it doesn't matter what you look like, what only matters is your attitude.”
Unfortunately for Green, what also matters is copyright law. And when the actor’s NFT collection was pilfered by a scammer in early May, he lost the commercial rights to his show’s cartoon protagonist, a scruffy Bored Ape named Fred Simian, whose likeness and usage rights now belong to someone else.
“I bought that ape in July 2021, and have spent the last several months developing and exploiting the IP to make it into the star of this show,” Green told Vaynerchuk. “Then days before — his name is Fred by the way — days before he’s set to make his world debut, he’s literally kidnapped.” Green did not respond to a tweet from BuzzFeed News regarding the show.
On May 8, an anonymous scammer swiped four of Green’s NFTs in a phishing scheme. Green mourned his “stolen” assets on Twitter, where he announced the losses of a Bored Ape, two Mutant Apes, and a Doodle, which were transferred out of Green’s wallet after he unknowingly interacted with a phishing site.
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, a tax and litigation 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 Santa Clara University, 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.”
After this story published, Green responded on Twitter to allegations about what the stolen ape means for the future of his show.
The NFT marketplace OpenSea said it has frozen the tokens, as it has previously done when assets were reported stolen. All four NFTs taken from Green are now marked with “suspicious activity” warnings. "We do not have the power to freeze or delist NFTs that exist on decentralized blockchains; however, we do disable the ability to use OpenSea to buy or sell stolen items," said Allie Mack, an OpenSea spokesperson. 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.”