‘Code is not law:’ Seth Green thief stole Bored Apes, not the rights, say experts

Austin Powers supporting actor Seth Green has sparked a debate over who owns the commercial rights to use a Bored Ape Yacht Club nonfungible token (NFT) after his Apes were stolen and sold to another party

Green tweeted on May 18 that four of his NFTs including BAYC #8398, Mutant Ape Yacht Club (MAYC) #9964 and #19182 and Doodle #7546 were stolen from him after he visited a phishing site.

Green, the creator of Robot Chicken and co-star on Family Guy, noted that someone with the pseudonym DarkWing84 had already bought the BAYC NFT. Now, legal experts and community members are weighing in about the implications of theft on BAYC intellectual property (IP) rights.

Well frens it happened to me. Got phished and had 4NFT stolen. @BoredApeYC @opensea @doodles @yugalabs please don’t buy or trade these while I work to resolve:@DarkWing84 looks like you bought my stolen ape- hit me up so we can fix it pic.twitter.com/VL1OVnd44m
— Seth Green (@SethGreen) May 17, 2022

BAYC’s license does not stipulate instances of theft. It merely states that “When you purchase an NFT, you own the underlying Bored Ape, the Art, completely.” Some believe this means that even if the NFT is bought from a thief, the usage rights transfer to the new owner.

Green has a TV show called White Horse Tavern in development which features the Bored Ape in question, so if this interpretation is correct, he may not be able to move forward with the show because he’s lost the commercial usage rights. A trailer for the show debuted on Saturday at the VeeCon NFT conference in Minneapolis, but the launch date is unknown.

IP and tech law professor at Santa Clara University Eric Goldman told Buzzfeed News on Wednesday that buyers are usually legally protected if they unwittingly buy a stolen item, and Coin Center communications director Neeraj K. Agrawal suggested that Green could get sued if he still uses the BAYC in his show.

i’m hardly an IP expert but my understanding of the ape system is yes this is within the new holder’s rights
— Neeraj K. Agrawal (@NeerajKA) May 24, 2022

But, head of policy at The Blockchain Association Jake Chervinsky said this interpretation is incorrect and a court would likely rule in favor of Green retaining the legal rights to the BAYC’s image, adding, “In other words, code is not law.”

If Seth can prove the NFT was stolen, it’s very unlikely a court would just throw up its hands & say “oh well, the thief gets the legal rights too”
In other words, code is not law
— Jake Chervinsky (@jchervinsky) May 24, 2022

Green already hinted Wednesday that he will go to court to get the BAYC back if it is not returned by DarkWing84.

Preston Byrne, tech lawyer at law firm Anderson Kill, agrees that Green likely has a strong case to retain the property rights to the art. In a Wednesday tweet, Byrne said that this is a “classic ‘unclean hands’ scenario” because the BAYC was bought from a thief with notice from the theft victim.

Nemo dat quod non habet. The thief doesn’t get good title to Seth Green’s IP, nor does anyone who buys it from said thief with notice. https://t.co/XHjKZaSbWT
— Preston Byrne (@prestonjbyrne) May 24, 2022

The BAYC in question was stolen and then sold on May 8, long before Green tweeted about its status. Goldman thinks questions will be raised about whether the immutable blockchain record can legally outweigh the lack of notice.

DarkWing84 has yet to make a public comment about what will be done with the Ape.

BAYC owners have been the target of phishing scams similar to the one that hit Green for some time now. On April 25, a hacker took control of the BAYC Instagram account and posted a phishing site link that extracted about $2.4 million in BAYC NFTs.

The same happened a year earlier in April 2021, when another hacker hijacked the BAYC Instagram account, dropped a phishing site, and got away with about 100 Apes.

The floor price for BAYC on OpenSea is 91 Ether (ETH), valued at about $183,000, according to CoinGecko.