Is Selling NFTs in Gaming Legal? A Comprehensive Guide to the Web3 Universe

Gaming and NFTs 

Non-fungible tokens (NFTs) have exploded in popularity in recent years, especially in the gaming industry. As players seek new ways to monetize their time and assets in virtual worlds, questions around the legality of these practices have emerged. This article provides an in-depth look at the complex legal landscape around selling NFTs in gaming, and describes the importance of consulting a blockchain lawyer. 

Selling NFTs does not have to be complex. Consult one of our trusted attorneys at Bull Blockchain Law by calling 215-695-5860 today. 

Understanding NFTs in Gaming

An NFT is a unique digital asset that represents ownership of a specific virtual item. In gaming, these are often collectible items like character skins, weapons, or other in-game accessories. NFTs use blockchain technology to establish provenance and prevent duplication.

Selling NFTs provides a way for gamers to profit from time spent playing by trading desirable or rare virtual goods. The emergence of play-to-earn gaming has accelerated this trend. However, the legal status of these practices remains unsettled.

The Rights of Game Publishers vs. Players

A core issue is whether players legally own in-game assets or if game publishers retain full control. Game EULAs often claim publisher ownership of all game content. However, scholars argue EULAs may be unenforceable in declaring perpetual publisher control of player activities and creations like NFTs.

  • According to a 2022 Congressional Research Service report, courts have ruled that games’ EULAs do not necessarily override players’ ownership rights granted by copyright law.

  • Who rightfully owns in-game assets has critical implications for the legality of players selling NFTs of those assets.

Selling NFTs of Game Assets: Copyright Infringement?

If game publishers own all assets, then players selling NFTs based on those assets could potentially constitute copyright infringement. Unauthorized reproduction and distribution of copyrighted content is illegal. This is why it is important to consult a blockchain lawyer or intellectual property lawyer. 

However, significant gray areas exist:

  • Game assets individually may not meet the copyright’s originality threshold for protection.

  • Players may have copyright interests in assets they help create through unique gameplay.

  • NFT sales could qualify as fair use if transformative and not excessively commercial.

Legal Risks For Game Publishers & Platforms

Platforms that enable NFT trading like OpenSea also face legal risks if sales infringe game publishers’ rights. However, the DMCA offers platforms safe harbor from liability for user activities if they follow proper takedown procedures.

Additionally, outright bans on NFTs and blockchain features could draw scrutiny for anticompetitive conduct. Platform holders like Apple may tread carefully to avoid allegations of monopolistic control over digital marketplaces.

The Push For Regulatory Clarity

Legal uncertainty persists over who rightfully controls virtual assets and whether various NFT sales constitute infringement. However, prominent voices argue clearer regulations are needed:

  • Decentralization advocates want protections against excessive publisher control and ownership claims.

  • Consumer protection groups warn against proliferation of legally ambiguous assets.

  • Developers desire more guidance on integrating blockchain features into games.

Key Takeaways on the Legal Landscape

  • Ownership rights over in-game assets at the crux of the issue. Game EULAs may not override players’ intellectual property claims.

  • Selling NFTs could infringe publishers’ copyrights but significant gray areas around derivative works, fair use, etc.

  • Platforms try to avoid liability, but bans risk anti-competitive scrutiny.

  • Calls growing for updated regulations suited for Web 3.0 gaming ecosystem.

The law has yet to catch up to the innovations of NFTs and blockchain gaming. Those exploring this new frontier should educate themselves on the unsettled issues around copyright and ownership. As technology evolves, a flexible regulatory approach can balance the interests of publishers, players, platforms, and the public. Hiring a blockchain attorney can help you to navigate these complexities. 

FAQs on Selling NFTs in Gaming

1. Can I legally sell an NFT of an in-game asset?

Unclear. Game EULAs often claim publisher ownership of assets, but players may hold IP rights to items they create/obtain through gameplay.

2. What happens if I sell an NFT that infringes a game's copyright?

You could face legal action. Unauthorized distribution of copyrighted content violates IP law.

3. Do platforms like OpenSea have to ban NFT sales if requested?

No. Under DMCA safe harbors, platforms must follow proper takedown procedures but need not proactively police.

4. Could a platform get sued for enabling infringing NFT sales?

Yes, but safe harbor laws protect compliant platforms from liability for user activities. Egregious failures to address infringing sales could forfeit safe harbor.

5. What regulations could help clarify the legality of NFT gaming sales?

Clearer guidelines on ownership rights, increased protections for player-created works, fair use allowances, and anti-monopoly oversight of platforms.

Finding a Lawyer when Selling Your NFT

Bull Blockchain Law has years of experience guiding clients through nft sales and blockchain technology. For more information, call our team at 215-695-5860.  

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About Bull Blockchain Law

As lawyers, technologists, and entrepreneurs, the firm’s partners began their journey in the crypto industry by building and operating cryptocurrency mining machines and a private digital asset investment fund. They quickly realized that the industry was woefully underserved by legal professionals who grasped the impact blockchain technology would eventually have on the world. Bull Blockchain Law LLP was founded to support the growth of a new breed of technology. Today, the firm serves as counsel to clients of all sizes and an advocate for sound public policy. It remains one of the few law firms completely focused on the crypto industry.