By Nick Corn IV
I am an active Twitter user. One of my favorite accounts on Twitter is @BadLegalTakes. The basic gist of their account is that they post screenshots of users posting misinformed, yet often very self-assured, legal opinions. Recently, one of the screenshots featured a post that I thought was so downright ridiculously wrong that I couldn’t help but write a blog about it. I know what you’re thinking, “he isn’t really doing his blog about a dumb tweet is he?” Yes. Yes, I am.
On January 15, 2022, an NFT group by the name of Spice DAO announced on Twitter that they had won an auction for Director Alejandro Jodorowsky’s storyboard for a later cancelled 1974 film known as Dune.[1] This film, based on the 1965 book of the same name by Frank Herbert, was eventually produced under a different director in 1984 and re-made once again in 2021.[2] The 2021 iteration of the film has grossed over $400 million as of this writing.[3] Seeing the success of the 2021 film, Spice DAO saw what they thought was an opportunity to make a big splash when Jodorowsky’s storyboard went up for auction with world-renowned auction house Christie’s in November.[4] The piece was estimated to sell for anywhere between $29,000 and $40,000.[5] Spice DAO paid a whopping $3 million for the storyboard.[6] After their successful bid, Spice DAO pledged to “[m]ake the book public” and “[p]roduce an original animated limited series inspired by the book and sell it to a streaming service” among other things.[7] Essentially, Spice DAO had come to the conclusion that, because they bought the storyboard, they were now the owners both of the storyboard itself and the intellectual property rights to the storyboard.
Unfortunately for Spice DAO, the current copyright for Dune’s IP run through 2056.[8] Even more so, the book they bought will also be copyrighted until at least 2092 as an author, namely Jodorowsky himself, is still alive.[9] Just for kicks though, even if this was the correct method of copyright transfer, there are 10-20 other copies of the same storyboard in existence.[10] Not just that, but pages of the storyboard also already exist online. At the time of the purchase, an individual had already uploaded the contents of the book onto Google Photos.[11] While the link to it is no longer functional, presumably because the owner of the copyright became aware of it, there are still many images of pages that come up upon a quick Google search.
Undeterred, however, Spice DAO has continued to persist in their attempt to make some use of their massive overpayment. In a blog post released by Spice DAO, the group stated that they conducted a “whirlwind week of meetings” in which met with a producer who helped create the anime sequence in Quentin Tarantino’s “Kill Bill,” a writer for a Netflix series, an entertainment attorney employed by Canadian rapper Drake, and 3 Los Angeles based animation studios among others.[12] In an interview, Spice DAO tried to reframe the situation as everyone else simply misunderstood what the purpose for their purchase was for. According to Spice DAO, “while we do not own the IP to Frank Herbert’s masterpiece, we are uniquely positioned with the opportunity to create our own addition to the genre as an homage to the giants who came before us.”[13] This posits two questions to inquiring minds. Firstly, if they were simply going to create their own fanfiction based on the storyboard, why spend $3 million to buy pages they could have found online for free? Secondly, how exactly do they intend to create that fanfiction based on the storyboard, and then subsequently sell it for the creation of an animated series, without infringing upon the intellectual property? One writer was blocked by Spice DOA on Twitter after asking them that very question.[14] The answer however is that they can’t. As UK-based trademark attorney Kirsty Stewart wrote, “in order to produce or authorise derivative works such as an animated series, SpiceDOA would need to obtain licenses from the Herbert estate, as well as potentially Jodorowsky (and any other authors such as Michel Seydoux) if the adaptation was based on the Jodorowsky book. Similar to how buying a Batman comic does not give you the inherent rights to produce a new Batman film, the purchasing of this directors bible does not give SpiceDOA any intrinsic rights to produce new material.”[15]
At the end of the day, this is plainly an example of a group, caught up in a trend, taking drastic action without fully comprehending what they were doing. Their attempted backtracking is the equivalent of a teenager, upon being romantically turned down, stumbling through a “What? No, of course I wasn’t actually asking you out.” Unfortunately for Spice DOA, the world can recognize their $3 million embarrassment from a mile away.
[1] @TheSpiceDAO, Twitter (Jan. 15, 2022, 12:28 PM), https://twitter.com/TheSpiceDAO/status/1482404318347153413.
[2] Adrienne Westenfeld, The Crypto Bros Who Thought They Bought the Dune Rights Won’t Give Up, Esquire (Jan. 25, 2022), https://www.esquire.com/entertainment/books/a38815538/dune-crypto-nft-sale-mistake-explained/.
[3] Dune (2021), The Numbers, https://www.the-numbers.com/movie/Dune-(2020)#tab=summary (last visited Feb. 18, 2022).
[4] Westenfeld, supra note 2.
[5] Joyce Li, Rare 1970 ‘Dune’ Storyboard Set To Hit Christie’s Auction Block, HypeBeast (Nov. 3, 2021), https://hypebeast.com/2021/11/rare-1970-alejandro-jodorowsky-dune-storyboard-christies-auction-announcement.
[6] Spice DAO meets with Drake’s lawyer, still can’t fix $3M Dune blunder, Protos (Jan. 24, 2022), https://protos.com/spice-dao-dune-bible-blunder-drakes-lawyer-cant-fix/ [hereinafter Protos].
[7] @TheSpiceDAO, supra note 1.
[8] David Barnett, Jodorowsky animated Dune in development, says crypto group, The Guardian (Jan. 24, 2022, 7:43 AM), https://www.theguardian.com/film/2022/jan/24/dune-animation-based-on-jodorowsky-concept-art-in-development-says-cryptocurrency-group-spice-dao-frank-herbert.
[9] Id.
[10] Protos, supra note 6.
[11] Id.
[12] Spice DAO, Development on the Original Animation has begun!, Medium (Jan. 18, 2022), https://medium.com/@spicedao/development-on-the-original-animation-has-begun-7879d785d013.
[13] Christian Zilko, Crypto Investors Plot Animated Series Based on Jodorowsky’s ‘Dune’ Ideas — Without ‘Dune’ IP, IndieWire (Jan. 23, 2022, 2:30 PM), https://www.indiewire.com/2022/01/crypto-investors-dune-animated-series-no-ip-1234693130/.
[14] Barnett, supra note 8.
[15] Kirsty Stewart, Jodorowsky’s Dune, NFTs, and Copyright, Thorntons (Jan. 17, 2022), https://www.thorntons-law.co.uk/knowledge/jodorowskys-dune-nfts-and-copyright.
Image source: https://worldfamousdesignjunkies.com/new-blog/2014/7/4/jodorowskys-dune-a-collection-of-media