Skepticism and Optimism Around Art NFTs


Katie and Steve speak (again) with digital art and NFT enthusiast Jason Bailey about the sudden rise of NFTs in the art world, what they really are, why they have value, and who is interested in them and why.

Resources:

https://pagesix.com/2021/04/30/modeling-agent-paola-zampolli-burns-valuable-art-to-make-nft/

https://www.christies.com/features/Monumental-collage-by-Beeple-is-first-purely-digital-artwork-NFT-to-come-to-auction-11510-7.aspx

https://www.theartnewspaper.com/comment/nfts-and-the-art-world-panic-and-possibility

https://www.theartnewspaper.com/comment/how-a-new-digital-art-market-could-mimic-the-traditional-one-including-in-bad-ways

https://www.theartnewspaper.com/analysis/the-second-renaissance-is-here-but-has-something-died-too

https://news.artnet.com/opinion/sleepminting-nftheft-monsieur-personne-1960744


Episode Transcription

Steve Schindler:  Hi, I’m Steve Schindler.

Katie Wilson-Milne:  I’m Katie Wilson-Milne.

Steve Schindler:  Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne:  The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City.  So, Steve, this past week, Bloomberg’s Matt Levine had an interesting explanation of this NFT phenomenon we’re seeing in the art world.  He summarized a Page Six article which described this interesting interaction between a crypto-guru and a traditional art collector.

And the art collector said to the crypto-guru at a party, “I just don’t understand this concept of NFT’s and why anyone cares about it.”  And the crypto-guru was Brock Pierce, also former child actor said, “Well, let me show you how it works.”  And he proposed that they take a work of art off of the walls of this art collector’s house and burn it.  And somehow he convinced the art collector to do this with the permission of the artist, I understand.

And they put the piece of art in a large champagne bucket and they set it on fire in front of all the guests that were at this party at the collector’s house.  Then the crypto-guru turns the video of the burning painting into an NFT.  And the art collector, who I presume now owns this NFT— we’ll put the copyright issues aside— with the permission of the artist is going to auction off this NFT at a benefit for the Kennedy Center.

“So, how do non-fungible tokens work?” Matt Levine asked from this anecdote.  He says, this crypto-guru would give you this explanation that you take a painting, you light it on fire, you create a little note on the blockchain, saying, “Lol I lit that painting on fire.” You sell that note for more than you could get from the original painting, and you give the money to some sharks.

Now Matt Levine says, “In summary, I want to stress that this is a completely correct explanation.  This is a perfectly accurate explanation of NFTs.  It would be appropriate if the end result of the NFT craze is that the concept of burning art on the blockchain becomes reliably more valuable than actual art so that all the world’s paintings are burned up to increase their value.  And then the whole history of art will be gone.

But it will be preserved forever on the blockchain in the form of cryptographically encoded videos of all the art being burned.  “Why did we think that was a good idea?” future generations will ask after watching the videos.  And perhaps the Mighty Ducks star turned cryptocurrency guru Brock Pierce will have a good answer for them.  But I do not.”  So we’ll start there.

Steve Schindler:  Well, Katie, I don’t have a good answer, but I’m sure our guest today will and I can think of nobody better situated to provide that answer.  We’re so pleased to be joined again by Jason Bailey, a thought leader in the area of technology and art.  Jason is the founder of the art and tech website artnome.com and the developer of the Artnome database, the largest analytic database of complete works by the world’s best known artists.

Passionate about digital art, Jason is the senior curator at the Kate Vass Galerie, where he focuses on contemporary and historical generative art.  Jason is an early collector of digital art on the blockchain and has helped to spread interest and to grow the community globally.  Jason holds a BA in studio art and art history from Framingham State University, and an MFA from Massachusetts College of Art.

His writing has recently been featured in publications including Art In America and Harvard Data Science Review, and he has lectured at Christie’s, Sotheby’s, and universities around the world.  And now I understand he’s the founder of something called GreenNFTs, of which we’ll hear more about later.

So, Jason, welcome back to our podcast.  It seems I just was listening to the podcast that we did in early 2018, where you came on and talked about digital art, blockchain tokens, and generative art.  And so now we fast forward three years, and you’re here again, talking to us as a person in the forefront of the latest hot topic in the art and entertainment worlds, NFTs.  And I’m sure most of our listeners are aware of the sale of an NFT at Christie’s in March for just over $69 million, or 42,329 Ethereum.  The NFT was by the artist Mike Winkelmann who goes by the name of Beeple, and according to Christie’s, the sale positions him among the top three most valuable living artists.  So not surprisingly, this has focused a lot of attention on NFTs.  And so with that, Jason, welcome.

Jason Bailey:  Yeah, thanks for having me back, Steven and Katie.  And I think in between the last podcast episode and this one, we last met in the basement of a street art fair, where we did a panel in a fairly hot room.  And we talked about AI and ML to folks that were mainly there, I think, to learn about street art, but were very kind to listen to us as we kind of went into the new digital world of AI and ML.

Steve Schindler:  Yeah.

Katie Wilson-Milne:  That world of art fairs in cramped, crowded basements with no ventilation is a thing of ancient lore.

Jason Bailey:  Pre-covid times, right?

Steve Schindler:  So, Jason, maybe before we get into a response to the Matt Levine setup, just start us off with a few basics.  What is an NFT or a non-fungible token?

Jason Bailey:  Yeah, so the high-level definition that I like to give, and people can always go deeper, but I think the mistake is that people try to go too deep, too fast and confuse people.  So NFT stands for non-fungible token, right?  And basically what happened is, even if you don’t own Bitcoin, or maybe even fully understand Bitcoin, at this point, I think most people have at least heard of Bitcoin.

So Bitcoin is this digital currency that comes out, over 10 years ago, and it proves that you can actually have a whole currency system where there’s no physical tangible coin or dollar, right.  And you can have this peer to peer system where you can prove using the blockchain, who owns the currency, how much of it they own, and when it’s been transferred.

So a bunch of us in the art world, specifically on the digital art side, because there’s never been a really healthy ecosystem or marketplace for digital art.  Because people always think, well, I can just see that for free online.  And the traditional art world’s been a bit conservative and slow to embrace it.  So a bunch of us in the art world thought can’t we apply those same rules that we see with a digital currency, to digital art?  Where we could use it on the blockchain and prove that it came from this artist, and that it’s changed hands for this price at this date.  And you can even destroy it and show that like, it no longer exists if you would choose to.  So it has all these nice, tangible physical properties.  But in the early days, it was hard for people to get their head around that, it’s still hard for some people to get their head around that.

So the thing to know is that the T, the non-fungible token is the thing you’re actually buying.  So a lot of times people think, well, I’m buying the art.  And it’s a little bit conceptual.  So the thing you can prove that you own is actually a token.  And what happens is, usually you buy the token, and there’s what’s called a hash.  Just think of it like a link, a link from that token to the artwork, and it’s stored in a few different spots.

Usually on something called IPFS, so it’s like a decentralized storage system.  So I don’t want it to get too complicated but you’re buying and selling tokens, those tokens have sort of unbreakable links to images or videos or things that are stored, if you’re buying digital versions of this work.  And then the non-fungible part— so fungible, sounds like a fancy word— all that means is fungibility is important for currency.  So if I gave you, Steven, one of my dollar bills, and you gave me one of your dollar bills, we would be happy because we know that they’re universally worth $1 anywhere, right?  But if you had a Picasso print, and I tried to trade you my niece’s crayon drawing for it, you probably wouldn’t be willing to make that exchange.

So things like artwork are non-fungible, they each have unique value.  So you’ve got tokens that have unique value, that have links to artworks on the blockchain that try to use a similar system that’s been proved out through cryptocurrency that these digital assets can be provably scarce and provably ownable.

Katie Wilson-Milne:  Jason, one thing I and others struggle to understand is, so the token contains a link.  But other places could contain that link too, right?  That link is not necessarily private or special.  It connotes no scarcity.  Maybe just distinguished further a little bit between the token and its connection to this potential artwork in the case of art, or video or whatever.  It could be a newspaper article; it could be anything.  But the token and the object at the end of the link could be disconnected.

Jason Bailey:  Yeah, no, it’s true.  So part of what people are missing out on if you came to this through the Christie’s Beeple sale, which I think it’s fair to say the majority of the mainstream people have come through it to that, it can be a bit more confusing.  But if you know the background story of those of us who’ve tried to make this a movement for four or five years now, our goal was actually intentional that everybody would be able to see the artwork.

So we decided, we have this saying that everyone sees it, only one owns it.  So historically, there’s been a mindset with a lot of art collectors that part of why you would pay this price for this physical painting or thing is because you then have the right to see it on your wall and to choose who can access it and who can see it.  But that breaks down in the digital art world, where it’s like, we already know everyone can see it and we’ve actually come around to realizing that that’s not a bad thing, for a lot of reasons.  If the artist is still living, the more people that see it, the better it is for them in terms of exposure and career.  But also as a collector, let’s just think about like the David Hockney pool painting, right, which I think was maybe the second highest or maybe the highest sale for a living artist at the moment.  But a couple of years ago, when it’s sold at Christie’s, they put advertisements in front of people all around the world, or even the Salvator Mundi, right that sold for $450 million.  Maybe that’s a better example.  We all saw those advertisements everywhere, even though they know none of us could afford it.  So why do you get so much exposure for these artworks, even if only a small number of people can buy them?  Because that inherently drives up the value.

So we looked at this early on and said, “Okay, let’s build a system where instead of relishing the fact that people can’t see it and paying for the privilege of keeping people from seeing it.  Let’s get excited about the fact that everybody can see it.  And because it’s indelibly, or immutably put on the blockchain as to who owns it, there’s no contest or a question about who owns it.  So we floated that out there as a new mechanism of how art collecting could work, and it’s grown over the last four years.

Steve Schindler:  So let’s just step back for a moment.  Let’s say I’m an artist, and I create a work of digital art.  And then I want to turn it into an NFT in order to sell it.  How do I do that?  I know that there’s something called minting.  Maybe just walk us through that process and what it actually involves from a technical side.

Jason Bailey:  Actually, it’s remarkably simple.  We’re now at a point where we’ve got probably a dozen or so mainstream platforms where you could go mint your art.  The hardest part today is actually going to get the minimum amount of cryptocurrency you would need in order to mint.  So let’s start there, but with the understanding that if you have cryptocurrency, minting literally can take seconds.

So normally, to get cryptocurrency, you’d have to hook your bank up to something like Coinbase.  And there’s an approval period.  And then you figure out which one you want to buy, and there’s a transfer fee.  And then there’s these things called gas fees, if you’re using Ethereum, where every transaction uses up some money.  And that kind of confuses people.  They’re like, “my money’s disappearing here.”  And then you have to install this MetaMask wallet, which is like a browser plugin.  But once all that’s done, and you do that once, or if somebody just gives you a small amount of Ethereum, or cryptocurrency, you could go to Rarible, or OpenSea.  These are two of the platforms that don’t have waiting lists or approval processes.  And you could literally take any picture that you have, anything digitally that you created, and within seconds, pay some small fee, it becomes tokenized.  There’s a hash to it, it lives on IPFS.  People could come and offer you money in those marketplaces for those tokens.  So yeah, it actually happens pretty quickly.

Katie Wilson-Milne:  And then Jason, was what’s actually happening underneath that minting process that there’s an assumption that the person uploading a digital file of some kind— and I assume that’s a prerequisite, there has to be a digital file, article, art, something, some digital file— that there’s a presumption that that person has rights to that file, copyright, I assume.  And that they are then creating some kind of licensing system by which through this token, anyone who owns the token, has a special license to access the art.  Is that the underlying system?

Jason Bailey:  Yeah, so there’s a thing called a smart contract, in particular on Ethereum.  And that smart contract is actually software.  And so that software can execute on its own, that’s sort of the decentralized component.  And in that smart contract, often there are legal terms.  It is, in fact, a contract.  But it’s set up to not require human intervention every single time.

So let me give an example of how smart contracts can be powerful.  If I were to buy an artwork on SuperRare, an NFT, and then resell it later on, the artist that I bought it from would automatically get a 10% royalty.  Now that contract executes and that money gets sent to that artist, that royalty, without any human intervention.  It’s software and it’s set up to execute on its own and it doesn’t require or allow for intervention, as long as you’re selling on that same platform.  Now, in addition to that each site has its own legal terms that people sign up to.  So I always recommend to artists that they read and understand the terms for the different sites that you’re minting on, because there’s sort of written disclaimers and terms and then there’s the contractual ones in the smart contract that you can dig into a little bit more and try to understand from that side.

So definitely not a legal expert, which is why I like hanging out with you guys, because you could help me clarify this stuff.  But generally, my encouragement to folks is like, go read the legal disclaimers on the site— So this is for collectors, too. Sometimes there’s a lot of young new collectors who don’t know what collecting is yet and are excited and onboarding and they’re like, “Oh, I bought this.  I can go make t-shirts of it.”  That’s usually not the case, so you kind of have to check from platform to platform.

Katie Wilson-Milne:  Yeah, and maybe we just should say, again, what exactly you buy, when you buy an NFT.  You buy some kind of artist-blessed special access link to something that the whole world may also have a link to.  Unlike the Christie’s advertising model you said before, I could get lots of email about the Salvator Mundi, I could even go see it, but that’s not the same as controlling it or having the actual painting in my house.  So there there’s a real difference.  Here the difference in access isn’t at all about the ultimate visual object, it’s all about the extra property you have in the NFT.

Jason Bailey:  It’s the token.  Yep.  So yeah.  And I always try to remind folks that “non-fungible token,” so the thing you’re getting is the token.  A lot of people wanted, including me in the beginning, wanted to think no, I’m buying art.  And the token is just like a proxy or a placeholder or something like that, like the receipt.  But you have to flip that and you have to come to peace with the fact that you’re buying the token, and the token links out to the artwork.  Joe Looney, who did the Rare Pepe Wallet, which is kind of the first platform in this space, always says, they thought of it as the artwork is what the token looks like.  And that’s hard for people at first to grasp.  But from a technical standpoint, the thing that you can prove you own and resell, and that no one else owns is the token.

Steve Schindler:  So is that is that similar— I think of it somehow as similar to, say, a certificate of authenticity that an artist issues in, say, a work of conceptual art.  Or even, say, the artist Dan Flavin, who works with fluorescent lightbulbs, you can easily go out and buy the materials and create yourself something that looks like a Dan Flavin, but if you don’t have the certificate of authenticity, you don’t have a valuable work of art.  And the only person who can sell that work of art is the person with the certificate.  And one of the disadvantages of Flavin is just, as the example, is that you can lose that certificate.  And if you lose that certificate, the artist’s estate will not issue a new one, you have lost the work of art.  That is the work of art from a marketplace point of view.  So is an NFT kind of like that?

Jason Bailey:  Yeah, it can be.  Some people put, sort of give the emphasis to the visual and say the token is just like the proof of ownership or the receipt.  I think a lot of other folks tend to think that the token is the thing.  It’s not just evidence that you bought the visual artwork, the thing you’re collecting is the token that’s been issued provably by that artist.  And the token is the thing you want to hold onto, and the visual aspect could almost be seen as secondary or the proof or the receipt that it came from the artist.  So it does take a little bit of mental gymnastics to get around to understanding that the token is the thing.  I think there was a question earlier about does there have to be a file uploaded to go along with the token?

And some people have tokenized themselves, right?  They’ll, say, sell an NFT that ostensibly represents them.  I think art’s always been social, and the value of a lot of art has been tied certainly to price, and I think value and price are two different things, but has often been tied to who made it.  So there are visual aspects of a painting that you and I might enjoy, but the price when it goes from a couple hundred dollars to tens of millions of dollars is usually tied to this is a very well-known and regarded person socially.

And I think we’re seeing that play out in the digital space where artists that have lots of followers and social clout people want to show that they’ve supported that artist, that they like their work, that they’re cool, that they’re into it.  And by being able to, if these are primarily artists that are producing digitally, which we’re seeing more and more and more of, being able to support them by purchasing a token that’s tied to their work that people can see that other work from that artist has been verified and come from their wallet, everyone can see okay, you collected this and you bought this, right.  And then I don’t want to get too far ahead but you think about we buy art, and we’d like to share it.  We talked earlier about how we like to have the right to keep people from seeing it sometimes, but really the goal, I think, is to share it with people we love because we’re excited about the artist, we’re excited about the art.

And as we move more and more online, especially last year with Covid, I think that accelerated it,  many of us have more contacts, thousands of contacts via social media than we would in real life, where maybe only a few dozen people rotate through our houses in a given year.  So being able to share the same way you would want to share your physical artworks to share your digital artwork collection with people all around the world, it’s pretty rewarding in a similar way.  And without having to flex too much or brag too much, because you’re using this NFT system anyone anywhere could go and say, “ah, you actually own this actual one, because we can trace it back through this public ledger.”

Katie Wilson-Milne:  I guess what confuses me about that is, you don’t actually own the artwork in any functional sense.  You’re not actually sharing the artwork with anyone— the image is out there, probably anyone can see it, or anyone else the artist has allowed to see it can see it.  So you don’t have the privilege of sharing your artwork, you have some, you know, series of numbers and letters somewhere on the blockchain.  And that’s presumably not what you’re sharing, you’re sharing the image of something, but you don’t need to share it, because people already have access to it.  So what is the art collector interest in this or piece of this?  If there’s no scarcity, if you don’t get the privilege of sharing, it’s different from a certificate of authenticity, because that certificate accompanies an object, which is worthless without it, but it does accompany an object that is scarce and singular and can be sold.  Nothing here is scarce and singular, except the NFT itself.

Jason Bailey:  Yeah, the token is scarce and singular.  And I think it’s dangerous to look at NFTs sort of monolithically.  I would compare them a bit to the early web.  Like, if you were to look at a handful of the ways people made websites or what they used them for early on or what territory they covered, you’d have a very sort of narrow-ish view.

So let me share maybe a few different ways and reasons why I think people collect, including my own, then we can expand a bit on other things that NFTs might be able to do beyond just being a link to an image.  So when I started four years ago— so I’m a failed artist, I went to art school, for undergrad and for graduate school and the world’s not great at supporting artists.

There’s the starving artist trope for a reason.  And in particular, the traditional art world has done a phenomenal job of supporting an incredibly narrow amount of artists.  And most of them look like me.  There’s a lot of white men in art history and in art museums, it’s not a particularly fair playing field.

So as a failed artist four years ago who made some money in tech, I was incented to try to think about what’s a better system that we could put in place that might be more equitable, for more artists?  And I was coming at it from the perspective of I’d like to be able to buy art sort of instantaneously from artists that I find online that I like around the world for small, small money.  So it’s like skip a Starbucks for the day, and spend $7.  And sites like DADA.nyc allowed this.  So in 2017, I bought this work by Moxarra [Gonzalez], an artist in Mexico.  I thought it was cute, it’s like eight bucks, wasn’t the end of the world for me.  Changed his life for that day, and that he immediately hit me up on Twitter and was like, “thank you so much,” not just the financial support, albeit small, but the emotional support, when you’re an artist that that somebody cares, is great.

So that’s what clicked for me four years ago, there was no secondary market, no one was selling this stuff for tens of thousands, or millions of dollars.  It was just an extremely fluid way to send out funds to support other artists, because my life gets better every day when there’s more art the next day by artists that I like.  So purely sort of altruistic, I would say in the beginning, and people were like, “you’re stupid for spending hundreds of dollars.”

And I’m like, “my life is genuinely better, because I’m connected to more creatives around the world.”  And I’m trying to forge a new system that’s more equitable.  And maybe there’s a slim chance, but it could compete someday with the older system, which I see is keeping a lot of people out.  That sort of got me started.  And for years, there was no secondary market.  So there wasn’t really any reason to speculate.

And what we’ve seen in the last year, year and a half, is a dramatic increase in speculation.  So there are a lot of people that collected early on for the reasons I do, some who still do, right, to support artists.  But then when we started seeing these things resell for an increasing amount of money, a lot of people in the cryptocurrency trade, who were essentially sort of currency day traders started thinking, well, I’ve got all this crypto, there’s only so many things I can buy.  I kind of like this artwork.  And it looks like someone else bought one and it went up in value, so I’ll buy some of this and sort of diversify, right.  So I think there’s some speculation there where people are buying these almost purely with the assumption that they might go up or down.  What’s interesting is that they’re sort of— it’s not Boolean or black and white.  A fair amount of these what I would call like “crypto bros,” for a lack of better description, that came in largely as speculators have now become super close friends with the artists and developed an affinity for art and often won’t sell, not because they’re trying to wait for it to go up further, but because they’ve discovered what it’s like to collect art and support artists during this process.  So I’m not sure if I fully answered your question or might have sidestepped it.  I think you were asking, what is it you own?  If there’s no provable scarcity, why do this Jason?  Almost like why participate?  And I think my shorter answer is, I participated in the beginning and still often do to show public support for artists I love who I want to see make more money, who live in a world that aren’t really traditionally supported very well.

And then lots and lots and lots of other people are participating, because they see it as a speculative instrument and it’s fun, and they’re stuck at home during Covid.  And they’re like, “well, I buy this cool artwork, if I get stuck with it, I have an artwork, but maybe I can flip it and sell it for some more money later,” is maybe sort of the driving forces.

Katie Wilson-Milne:  But the issue is they don’t have an artwork.  I mean, everything you’re saying is really compelling, but I guess just the root of my skepticism is that they don’t have an artwork.  They just have a key, like a digital token.  They don’t have an artwork.

Jason Bailey:  So I think it requires some mental gymnastics.  But we’ve certainly got a history of conceptual art.  So people have been buying things that artists put out as sort of ideas over the material presence of owning an artwork for a while.  Like going back to Duchamp’s urinal, or Fountain on its side, tt wasn’t the fact that that ceramic urinal was like such a beautiful work.  It was really Duchamp showing the world that the value in art is often conceptual, right.

And I think where we’ve gotten to is that it’s actually largely conceptual and largely social.  So when an artist says, I’ve created this work, and it’s my ideas and my visual, or this, that, and the other— or there is no visual, it’s just my concept.  And fans or supporters who want a world full of creative people who get supported for thinking creatively and making things say, “I want to support that and I want to associate myself with that in some provable way.”  That’s where I think the token comes in.  And the artists are happy to have that support from collectors and that they collect the token and the token is a— you could think of it as a conceptual artwork that has a link or a hash back to the visual, that’s one way to think about it, or you can think of it purely just as the token.  But yeah, I think there’s— I think reducing art to an object, purely to an object makes it a lot harder to understand.  But if you look at art, as I tend to, as a combination of conceptual and social, then I think it starts to make a bit more sense why people are getting into this.

Steve Schindler:  And it’s interesting, Jason, you describe your interest, and I remember talking to you about this three years ago, in collecting digital art, it comes from a great place, which is this idea of supporting artists, and maybe supporting artists and connecting with artists who are not necessarily recognized by the sort of high-end art world.  Do you think that what’s happened then over the last year, year and a half— has it been a sort of hijacking of the world that you have been proselytizing about, for so long to resemble more of the art world at the highest levels?  And is that a good thing?

Jason Bailey:  Yeah, it has, I think, to some degree been hijacked.  And those of us that were sort of early on, or coming to peace, or trying to come to peace with it.  I think, again, the web is a great example.  There were a lot of like cypherpunks and early web users who thought that the web was going to be the free press for everybody and be uncensorable and monopolizeable.  And then fast forward 20, 30 years, and we’ve got Amazon, Google, a few others.  There’s really just a handful of giant companies who have undue control over how we navigate and deal with the web.  Now there’s still— anyone can make a podcast, anyone can make a blog, and there’s still some benefits.  But it didn’t turn out the way maybe the earliest altruistic pioneers would have thought the web would have turned out.

I think we’re seeing something similar here, where there were a bunch of us who were like, “hey, this could really be a fully decentralized, no middleman, no gateway opportunity for artists anywhere, to have an even playing field to produce work and share it on decentralized markets where we could develop followings.”  And we had a lot in mind, this automatic royalty system, and all these things that we think can still happen.  All that experimentation is still happening, but there’s a lot more press and attention around the big sales.  And that’s always been true in art, I think in analog art, too.  You can have some— every street of every major city is full of artisans making amazing and beautiful things, and none of those things end up in the New York Times, right.  But someone sells something for a couple hundred million dollars, it’s going to end up in the New York Times, and I think that becomes the lens through which people understand things.  So the Beeple sale on the one hand, it did us a favor because it increased the interest in NFTs, and we want more people buying art.  Right, because we want more money flowing into the pockets of artists, and we want to find systems that are more equitable.  But it also brought everyone that came in through that doorway, or similar doorways is saying, “How is this different Jason?” So Christie’s a 200-year-old auction house sells a work by a white artist, tech artist or whatever, for millions and millions of dollars.  This story doesn’t look any different than what we’ve been seeing over the last 10, 20 years.  Isn’t this just more of the same.  And you have to dig in deeper and look at the stories of artists from friends of mine from countries like Mexico and Nigeria, who fed their families during Covid, selling digital artworks and NFTs.  And as collectors, our lives were better because they were making more of it.  And as artists, their lives were better because we were able to support them in the process and feel like we were rewarded for it.

Katie Wilson-Milne:  Could they have just sold a digital piece of art, though why tokenize it?  Couldn’t they just sell the file, and then it would both be— you would actually own the file.  You could share it or not, they could still have multiple editions if they wanted to sell it to other people or put it online publicly.  So what’s the distinction?

Jason Bailey:  Yeah, so people have sold file based digital artwork for a long time.  I think there’s just enough friction there, that it slows people down.  So if it’s like, okay, I really like this work you have, let me give you a credit card payment of $200 and you’ll send me a thumb drive that I’ll get in two weeks or whatever.  That’s valid, and people have been doing that on a much smaller scale, but the frictionlessness of the blockchain, I think has a lot to do— there’s a few things.  The timing with we’ve probably got more under 30-year-old millionaires than ever before, by far with the upscaling Bitcoin and Ethereum.  So there’s all these people with far more discretionary income than they’ve ever had before.  And this younger under 30 crowd, most of them don’t want anything to do with exclusive wine parties and galas.  They’ve kind of felt like the art world wasn’t for them, right.  And to be fair, the art world has done a pretty good job of suggesting that.  So for a long time, the art world was built on exclusivity, through the 80s, 90s, early 2000s.  And the idea, just like, you’d get excited that you bought a painting that no one else could see and that’s what you paid for, you get to go to a gala that no one else got to go to.  And what we’re seeing in the 30 under crowd in my opinion, is that they actually really like inclusivity.  They think exclusivity and luxury are sort of dirty words, or increasingly dirty words, and inclusivity and this idea that anyone can participate and that things are digitally native, I think are exciting.  So there’s these people that have more wealth than they had before, there’s a limited number of things that they can buy, and there’s a frictionless system, which is where I was starting— this frictionless system where I can hit a button and seconds later, the whole world knows that I own this digital artwork, or whatever.  And I don’t have to worry about it getting stolen or misplacing it.  It’s in my pocket, it’s just so easy to buy and to sell.  Once you’ve got the cryptocurrency, which as I explained is a little bit hard to get started with.

That’s what I would attribute.  It’s not about whether or not I think this is cool, or not.  Three years ago, that would have been the argument.  Now I think we’ve already seen the explosion.  It’s clear that there’s a ton of money moving around.  There’s lots of people doing this.  So it’s more about well, why do we think that’s happening versus selling thumb drives?  And I think it’s because it’s entirely frictionless.  And this is the kind of commerce that people are growing up used to now.

They expect to not have to go into a gallery where someone looks at you and tries to figure out if you have enough money to buy something and won’t talk to you if you don’t.  Rather than go through those hoops, they can just hop on if they’ve got the currency and they like something; there’s full price transparency in this market, unlike the traditional market.  You see something you like, you can afford it, you don’t have to do the social song and dance to get the gallerist’s approval, you can just buy it.  All the friction has been removed.

Katie Wilson-Milne:  That makes total sense.  And I agree and observe the same generational gap in sort of how the high-end art market has structured itself and advertised itself.  I guess I’m just not sure why then the artwork itself couldn’t be on the blockchain.

So if the friction is the issue, isn’t there a way we could make these transactions frictionless, but you would still get a file with the actual artwork, and you would own that artwork, rather than again, not owning the artwork, just owning a token that links to the artwork?  Who knows that link could be broken, that artwork could be taken down; so why doesn’t the artwork itself reside in the NFT?

Jason Bailey:  Yeah, it’s an amazing opportunity for someone to solve that problem.  So one of the things that I often say is that we’re sort of in the, using that web analogy again, we’re sort of in the screechy modem days.  So I’d argue NFTs weren’t really ready for primetime, but just kind of happened to us.  So the other analogy I use sometimes is that the cake is not fully baked yet.

That’s scary to some people that are like, “wait, everything hasn’t been solved yet?  And like, that’s dangerous.”  But to a lot of us, people like me, I’m very wired to be excited when the cake isn’t baked yet and when the modem is still screeching, and things don’t fully work yet.  So I look at things like IPFS as being incredibly imperfect.  So let me tell you a quick story about IPFS.  In the beginning, I’d be like, “well, where’s this artwork kept?”  And people would be like, “IPFS, it stands for InterPlanetary File System.  It means it’s distributed across all these different servers.”  And I was like, “Okay.  These people seem smart.  That sounds good.  I’m fine.”  And I went around the world lecturing the people like, “Look, even if the company goes down, the work is on IPFS, everything’s going to be fine.”  Well, then a couple of companies went under in 2018 that I had bought work from, and I couldn’t find the images anymore.

And I’m like, “Well, where are the images?” And it turns out that IPFS, often the company has to pay for a node.  So even though the storage is decentralized, there’s a centralization point where the company has to pay for this node to keep the IPFS running.  And if they go under, then it’s no— I mean, so what good is decentralization if there’s a centralized failure point?  Probably not that good.  So that’s one thing to know about the current storage system.  To answer your question about why not store it on the blockchain, the blockchain is super lousy, even though it’s a database, it’s a super lousy storage place.  It’s just not good for file storage, it’s a really expensive way to save anything of a decent amount of size.  So someone needs to try to figure out like, is there something better than IPFS, where you feel you definitely have the file?

And then I think we’ll see— again, so the cake’s not baked, early screechy modem days— I think we’ll see legal folks getting in together with people writing smart contracts and setting up platforms to get more sophisticated as collectors get more sophisticated, on ways to know exactly what your rights are, and then maybe collectors will demand more rights or to understand what those rights are as we move forward.  So there’s room to grow.  I definitely don’t want to sit and point at what we have today and be like, “ta-da!  The system is perfect.”  It’s early, and there’s a lot of room to grow.

Steve Schindler:  It won’t solve all of your problems.  But one of the issues, I guess— and to Katie’s question— that I always thought was that it’s been well written about that it takes an extraordinary amount of energy to power the blockchain generally.  And then every time you mint something, there’s a cost to it.  And I guess those costs may be are increasing to some extent.  And if you try to put something very large, a large file on the blockchain, it has both the economic cost that somebody has to bear and also an environmental cost, which I know you’re concerned about through this new platform of GreenNFTs that you set up.  So maybe just talk a little bit about that, and where do you see the future from sort of an environmental perspective, and how do we make this type of artwork environmentally friendly?

Jason Bailey:  Yeah, no.  Thanks for asking about that.  So I think in the first few years, a lot of us came from the art world and didn’t fully realize that there was this ecological aspect, that it was as problematic as it was.  And then a friend of mine, Memo Akten wrote an article end of last year that really went into detail about how potentially damaging NFTs are to the environment.  And as you both probably know, I know you hang out with and know a lot of artists, we tend to be a pretty liberal, pro-earth, anti-global warming kind of crowd.  So it was sort of a crisis.  And for a while there a month or two ago, what I saw on Twitter, which is where a lot of these conversations in the crypto-art world unfold, was a lot of new artists to the space often that had computer science degrees or were from more slightly privileged countries or had come late to this NFT world and were now looking over the fence, because it was doing well, and artists were making money.  And they came in and said, “Aha.  This is really bad for the environment.” And kind of which we all needed to hear, but were kind of wagging their fingers at, in a lot of cases, artists that were from “third world” countries where maybe they never owned a car, never flown up in a plane anywhere before, were in the middle of Covid, and had fed their family for a year by making NFTs.

And what I saw— and I had friends on both sides of that argument.  And what I saw is we quickly got past the point where the discussion was fruitful.  And it just got to— people complained that were death threats going around, and it was just not productive.  So as someone who loves the space and wants to see it grow and acknowledges its imperfection.  I said, “What if I throw—,” I tweeted, “what if I throw $1,000 in and a bunch of my time, donate a bunch of my time, and we harness all the creativity and tech chops of all the people that are concerned from both sides of this?  Because nobody I’ve talked to yet says let’s just burn the planet down.  So what if we— if I started a grant, and we had a hackathon, and we used this human energy to try to solve the problem instead of beating each other up?  Would folks be interested?”  So fast forward a couple of months, and we have about $100,000 in donations from thousands of individual donors, 23 teams working on trying to solve the problem.  Half roughly are working on educational components, because there’s a lot of smart people that disagree with each other about what the impact is.  And then the other half trying to write software solutions that will be open source to try to help solve the problem.  There’s a thing called PoW, or Proof of Work, and that’s what Bitcoin and Ethereum work on today.  So the premise is that there are people all around the world with banks of computers, and those computers are racing to essentially solve a math problem before the other people with their computers solve it.  And that earns them the right to make the next block, which comes with a monetary reward.  So often these guys will pool, and gals, will pool together, because it’s so rare that you win the reward.  You’ll kind of come together and be like, “if any of the five of us win, we share it, or whatever.”

So there’s all these computers racing to solve this problem.  That burns up a ton of electricity, that’s where Bitcoin and Ethereum electricity gets burned.  Ethereum for several years now has been talking about moving to PoS, so that’s Proof of Stake, also an imperfect system.  But the premise there is a little bit like you wouldn’t burn down your own house.  So rather than everybody competing with computers burning energy to solve a math problem, they say, whoever has a certain amount of Ethereum, beyond like a certain dollar value, those people will be the ones who decide if the transactions that went through are authentic or problematic.  Because people at some currency level, wouldn’t all make a bad decision about the chain, because it would lessen the value of their investment essentially at a high level.  And that all but removes the environmental concerns.  So there are chains today, like Tezos that are already running on PoS.  And the more environmentally conscientious artists have started a platform called Hic et Nunc.  So that’s, I believe, Latin for here and now.  And it’s been a beautiful thing to see, because it coincides with all this commercialism and cash grab going on and NFTs.  There are a lot of artists in the digital space that have been around for decades, who are intentionally selling their work for less on this purely environmental platform that doesn’t have any of the hype and doesn’t have any of the environmental concerns.  So in summary, I think that it’s totally a problem.  But we’re seeing solutions to it already.

The community’s working on solving it, you could go to Hic et Nunc and completely get around the problem today, if you wanted, by using Tezos.  I think part of it is that people that came late to NFTs in general kind of want to hate them.  Because they’re like, “I don’t understand these things.  People are getting rich on them and they sort of insult my sense of logic.  What’s an obvious attack vector where I can justify not understanding them and not participating?  Oh, they’re bad for the environment.  Oh, that’s why I hate them.”  And then if you come back, and you’re like, “Well, no, now they’re okay for the environment.” And they’re like, “Okay.  It’s commodification of art.  That’s why I hate it.” Like there’s a checklist that people want to go through.  And it’s like, well, the old art world commodified art, this one’s just more accepting, because people can participate from different areas.

But it’s fair, I mean, I don’t expect everybody in the world to want NFTs or to love NFTs, I think it’s for people that are excited about collecting digital art, or digital property or video games.  We didn’t really talk about it but NFTs can actually have a function, they don’t just have to be a link to an artwork.  So your NFTs could be an admission ticket to a concert or a museum.

So you buy the artwork but you also get access to blog posts from that artist, which can be locked behind a gateway that’s only openable and proven by that token.  Or you can buy— there’s examples of artists that make artworks that then become usable in games.

So we live in these increasingly digital worlds where digital property can be more than a static image, and it can change our access levels to music or physical places, or we can get pretty creative here.  And I think we’re starting to see that, and I expect more of it over the next year or two.

Katie Wilson-Milne:  Jason, if we’re thinking about the buyer, so I want to buy some NFTs, I go to a website, that’s like a gallery for NFTs.  And what I see on the website is the image, not the NFT but the image that the NFT links to.  I buy the NFT, but do I actually look at like the code?  What’s the mechanism by which you would buy an NFT?  And then is it the artist— let’s talk a little bit about the artist’s participation in the transaction through selecting the platform, presumably knowing what terms that platform is selling on, because that platform is really kind of like the consignee of the artwork, or the dealer, and what the relationship is between those three parties.

Jason Bailey:  So the early folks were decentralization obsessed.  It kind of comes that cryptocurrency traders tend to skew towards the libertarian side and are obsessed with being able to stay anonymous or are obsessed with no central authority.  So some of the early platforms, you didn’t need to get any approval whatsoever.  If you were an artist, you could just put your work up, you didn’t talk to anybody, and anyone could come along and buy it.  And the reason I mention this, is because there’s now a spectrum of decentralization.  So you’ve got platforms where the artist’s role can be fully independent.  They almost don’t rely on the platform for anything, they don’t have to ask permission to mend, they don’t have to do— Rarible and OpenSea are very decentralized and opened in that way.

And then there are, maybe on the opposite side of the spectrum, are things like Nifty Gateway, and because they take credit card payments or whatever, my understanding is that in some cases— and I want to be careful here, in some cases, I believe they mint for the artists, and this is the thing that gets— like, people debate within the space.  Can a third party mint the work for the artist and if that happens, is it still from the artist?  Or if I buy as a collector of work, say, on Nifty Gateway, does it immediately go to my wallet, or do they custody it for a while?  The role that the artist plays relative to the role that the platform plays and how involved the platform is or isn’t lands on a spectrum.  What tends to happen is the platforms that can accept credit cards and things like that are maybe seen as being less authentically blockchain driven, but have a broader audience because they don’t force people through the complexity of trying to get crypto if that makes sense.  So I know that’s not a singular answer but I guess what I’m trying to say is, there’s a wide enough spectrum among the platforms that you can find a platform where the platform does almost nothing and isn’t really an intermediary at all.  And when someone comes as a collector to buy, the platform does nothing, the contract’s in place.  The platform doesn’t have to say, “Oh, I see a buyer, and I see a seller, and I’m going to approve this transaction.”

It goes right away, right.  And that’s the way most of these decentralized platforms function.  And really the role that the platform plays— in the early days, we thought, the purists, we thought that there would be no galleries, no platforms, the platforms wouldn’t matter, every artist would have their own smart contract.  But what we were missing, and it seems obvious now, is someone needs to promote this stuff.

If you’re an artist, and you weren’t selling any work yesterday or the last few months, and then you tokenize or mint your work.  It’s not like magic happens and all of a sudden, people start throwing money at you.  You still need to get out there and be promoted.  People have to know who you are.  So what’s happened is that the platforms have feeds and followers and collectors.  And when you mint on a SuperRare or even a Rarible or a KnownOrigin, you fall into their stream, their tweet stream, their feed, their featured works, and that gets your work in front of people who are already known and proven collectors.  So it’s really, after the initial setup of the smart contract, these platforms are almost more like marketing or traditional gallerists in that they’re helping get the work out.

Katie Wilson-Milne:  Right.  How else would you find— if you’re a collector and you don’t already know about an artist, how else would you find?  So you mentioned smart contracts maybe we should talk about those.  You said the artists— that contracts are already in place.  And as lawyers, Steve and I— like, contracts are never just in place.  The two parties have to talk about what they want to agree to, or there’s some process by which terms get created.

And how does that happen here, because in our experience, artists are not that interested or proactive in developing contracts even to protect themselves.  So where do these smart contracts come from?  Who’s writing them?  How do the artists have the wherewithal to know what to put in them?  Or what if things change?

Jason Bailey:  Yep.  So, SuperRare’s smart contract was developed by the guys at SuperRare who have backgrounds in writing— I think it’s called Solidity is the Ethereum protocol language.  So early, early days, I think there was a fair amount of cut and paste for a while where people were grabbing pre-existing contracts or changing them.  But as the companies have become invested in and are actually more like companies now and less like personal projects, I think they have to have some sort of third party audit in a lot of cases of their contracts to show that they’re viable, and they use a combination of lawyers and developers is my understanding.

Now again, no one answer is going to work here.  There are examples of a couple of artsy guys that are semi-technical who threw together their own minting process as recently as a week or two ago.  And my guess is they didn’t hire a bunch of lawyers and if you went there, you’d probably get some sort of fishy contract, a smart contract wise.

And then there are other people who’ve lawyered up big time and have investors and are probably super worried about KYC and going through all that stuff.  So yeah.  There’s a spectrum there, and I guess if I try to explain the behavior and the adoption, it’s largely that, well, if everybody else is doing it, how bad can it be?  I think is sort of the way to look at it.

Steve Schindler:  And it sort of mirrors, in a way, what we’ve seen in the analog art world, which is that in the old world, often things were done on a handshake.  I mean, that’s talked about all the time.  And as the collectors became more and more, say, finance-driven, people who made their money in the world of finance and are used to lawyers and are used to contract terms when you’re negotiating the purchase and sale of a valuable commodity, then you see lawyers come in, and you see a greater interest in contracts.  And I suspect that as some of the prices go up, and the artists are getting more and more, that certainly people who are purchasing the works, may be a little bit more attuned to or look a little bit more closely at the contract terms.

Katie Wilson-Milne:  Yeah, it’s interesting here that the parties whose rights are at issue, the artist and the collector, are not involved in negotiating the terms.  It’s the platform.  And at some point, that seems like a potential problem waiting to happen about just a misunderstanding of what rights each party has maintained or given away.

Jason Bailey:  There are some levers, I should say.  Like if you’re on OpenSea or Rarible, you can pick what the royalty percentage would be for future sales.  So there’s precedent that they could make some of these add some levers and buttons, for some customization that can happen on the minting side from the artists.  So this is what I want as part of my contract, and it shows up in the interface and the contract for the collector when they come in on the other side.  But I think there’s room for innovation there for sure.

Steve Schindler:  So how do you— as lawyers obviously now we’re, we all sort of start to think about the problems that can arise looking at our experience in the art world: fakes and forgeries, copyright infringement, security, insurance.  And the list goes on and on.  So one of the things that I’m interested in is if you’re a buyer, and you’re buying an NFT on a platform, what assurances do you have that the artist is not going to mint another NFT, either on that platform or maybe another platform, of the same work of art?  Just using as an example, Beeple minted his Everydays – The First 5000 Days in 2021, sold it Christie’s for $69 million, can he just mint another work similar to that and then sell it on another platform or the same platform?  And I realize I’m not asking you as a lawyer, but just from a technical background, what protections do buyers have that these works aren’t just going to be re-minted and sold to somebody else?

Jason Bailey:  Yeah, so a few things.  I would say— I know, because I’ve minted art of my own on SuperRare.  It’ll ask you, there’s a box that pops up and says, “you agree to not make this same work on other platforms,” and you check the box.  But I would also say that I don’t know and you guys might, given your expertise.  But I don’t know of a system in the analog art world that keeps someone from painting the same painting over and over again and selling it.  So I don’t know that that’s a new problem unless there’s recourse in the traditional art world that’s not placed in place in the digital art world.

Steve Schindler:  Right, well sometimes, I mean, again, it’s probably a bad example.  But there are regulations relating to limited editions of art.  And what artists can and can’t do, if they’re creating, say, in addition of ten.  And that’s pretty well established and regulated, certainly here in New York.  And I’m not sure if that carries over into the sort of digital universe where, say, there are rules about what a limited edition looks like.  Because even as I understand it on some of these platforms, works can be multiplied over a period of time.  And that the number of works that are sold can sometimes be measured by how long they’re up for sale.  Does that make sense?

Jason Bailey:  Yeah, there’s a thing called “open editions,” where an artist can choose to say, “I’m going to sell as many as people want to buy for a thousand bucks for an hour,” or something like that, right.  And then the understanding— at some point, I think we all have to recognize that the artist ultimately has the final say, no matter what you’ve agreed to or what amount you’ve paid.  Because if an artist decides, and it’s happened in traditional art history, that they want to disown previous works that they created, the value plummets.  And I’m sure you guys have seen or heard of examples of that, where there’s artists that decide the early work that they created, they just didn’t think it was very good or they didn’t expect it to escape their studio, and they kind of disown it like a parent would disown their child or whatever.

And I try to explain to young new collectors who almost forget that there’s a human artist on the other side and are just playing this purely speculative game and will yell at the artist for making too much work.  And they’d be like, “Every time you make more work, my scarcity goes down.” And I try to remind these younger folks, like, the only reason anything that you’ve bought has any value is because the association to this given artist, this person who you’re not treating particularly well.  I think it’s good advice, analog and digital to remember that the power and value of these things is tied back to the artist’s willingness to accept and acknowledge it.  And if they want to find a way to lampoon the value of your work, because you’re a jerk or something like that, I think there are some pretty creative ways to do it.

Katie Wilson-Milne:  So we’ve talked about some of the legal frameworks of these deals, the smart contracts, which I think, are nascent in both being understood and in their development, the resale royalties that are implemented by those contracts that in law has really never taken off in the United States the way it has in Europe, but I do— for our listeners, I think there is a potential misunderstanding about what’s being bought.  And just because a collector buys an NFT through a website where they see the image, and they think they’re buying the image, they’re actually not buying the image or any rights to the image.  So that collector really doesn’t have rights, absent terms in a contract, which may or may not exist, to display the art in a public way; on the internet, to send it around, to make derivative works from it, to do really much with it at all.  Because unlike a painting, they didn’t buy something they can hang on their wall.  So they may have some rights and there may be some license rights in the smart contracts but it’s worth just noting that there’s no— it’s new territory, because unless that sort of what we’ll call a license, because it’s not a sale of the actual object is worked out, there is no license.  I mean, there are some implied licenses in certain settings.  But you know, in general, typically in copyright law, you’ve got to work out on paper what rights are being given.  And so it’s just interesting here to see this marketplace.

Jason Bailey:  Wild West.

Katie Wilson-Milne:  Yeah, it is the Wild West.  It can all be worked out, right, a smart contract.  There could be some industry consensus about what license is given in the sale of these NFTs to the adjacent artwork.  I just don’t know where we are, if we’re close to that.

Jason Bailey:  Yeah, so and I think it is Wild West.  I was calling it screechy modem or early, or the cake’s not baked.  And for some personalities, that’s scary as hell and for others, that’s like candy.  I’m someone who’s happy in the unsettled Wild West and recognize that, there’s potential pitfalls.  And I bought some works, because I didn’t do my research, that weren’t by the artists who said that was by them.  We’ve seen examples, Steve asked earlier, can you mint the same work?  Someone who was a great artist who’s well respected accidentally minted the same work twice, because they forgot they did the other one.  And when the space was small, and we were all close, it was easy, because they got called out on it.  And they said, “Whoa, super sorry.” And they burned that token, and made a new one as a gift to the person who’d bought the first one to say, I’m sorry.  So there’s this social policing, that happens there.  But I do wonder— I’ve bought a fair amount of physical art, I have a fairly large physical art collection, I’m an art collector.  And it’s never been my understanding that when I buy physical art, that I have rights to go make shirts or anything like that out of a painting that I bought.  So I’m not sure that that it’s that different, unless I’m missing something.

Katie Wilson-Milne:  Maybe just the digital nature.  And because you don’t actually own the digital file, your use of the digital file, unlike your use of the physical painting, isn’t presumed, isn’t— as usual, the law is behind.  The law is behind what’s happening in the commercial world.  And so it’ll be interesting how these issues get sorted out.

Steve Schindler:  Maybe a place to end, Jason, is to go back to the synopsis and quote from Matt Levine’s Bloomberg piece, you know, which is a little cynical, I suppose.  Envisioning a world in which basically, all of the art is burned to create digital markers of it.  Do you see this as a trend or a danger for NFTs?

Jason Bailey:  Yeah, it’s a bit of man bites dog.  So, I think we’ve hit a cash grab sensationalism stage to NFTs, where people are competing with each other for more outrageous stories.  But the nature of outrage is that they’re sort of outliers by definition.  I’ve been in the space for four years, I’ve seen a couple of silly, for lack of better description, people trying to get attention by burning physical works and making NFTs.  I think I tweeted just last week, “‘Hot take:’ Destroying physical art to make NFTs is dumb.” And most people agreed with me.  But when you have a space as varied as this, you can’t look at what any one person is doing and assume that that’s representative of what the whole space is doing.  I certainly don’t think that’s representative of what the space is doing.  You know, maybe something that they’re into.  Part of being early is that there’ll be experimental things, and some of the experiments or outliers aren’t things that I find interesting.  And we might disagree about what’s interesting and what’s not.

I think if you’re suspect of this, in general, the easiest way to attack it is to find these weird, random things that aren’t normal or typical, and to try to call them out as the reason why you hate this.  And I think the majority of transactions that are being done are between artists and collectors who are excited to collect that art and we’re seeing digital artists for the first time that I’ve ever known of make careers.  So if I back up and look at this, I spent half my life in art school and the second half of my life as a collector and a writer about art, and until the last two years, I knew one person who made art full time despite knowing thousands of artists.  All the other artists, painters, sculptors, photographers I knew all had jobs as teachers or something else.  And this last year, year and a half, I now know, dozens and dozens and dozens of artists, digital artists, who just make digital art full time based on this new economy.

So if we look at— let’s forget about the weird outlier things that happened in the middle periodically, that get the press that people pay attention to.  What I’d want to leave people for consideration is we have a non-inclusive art world that’s built on exclusivity that’s done a good job of excluding the majority of the world from participating.  We’ve got starving artist tropes, we don’t have, historically didn’t have a market that appreciated or paid digital artists, right.  Fast forward.  We’ve got all that now, right.  And it’s early days, and it’s imperfect, and we can work on it and try to improve it.  And I mean my take is that it’s a sapling, and it’s easier to bend a sapling and prune the sapling, then the old art world, which is a bit of an oak tree.  And the oak tree is trying to say, “Okay.  We’ve heard Black Lives Matter.  We need to be more accepting, and we need to be more diverse.” But it’s hard for that oak tree to bend.  So I’m just saying, we’ve got a new system, it’s flexible, it’s early, we can help steer it.  And let’s not step on a sapling, because it’s not perfect.  Let’s try to grow it in a direction that works well for people.

Steve Schindler:  Well, that’s a great place to leave it.  Thank you, Jason.  As always, it’s a pleasure to talk to you and I’m sure our listeners really appreciate your insights.  And that’s it for today’s podcast.  Please subscribe to us wherever you get your podcasts and send us feedback at podcast@schlaw.com.  And if you like what you hear, give us a five-star rating.  We are also featuring the original music of Chris Thompson.  And finally, we want to thank our fabulous producer Jackie Santos for making us sound so good.

Katie Wilson-Milne:  Until next time, I’m Katie Wilson-Milne.

Steve Schindler:  And I’m Steve Schindler bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne:  The information provided in this podcast is not intended to be a source of legal advice.  You should not consider the information provided to be an invitation for an attorney-client relationship, you should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.


Music by Chris Thompson.  Produced by Jackie Santos.