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Are NFTs Securities Offerings? Two Artists Sue the SEC to Find Out

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Are NFTs Securities Offerings? Two Artists Sue the SEC to Find Out

‘Song-A-Day’ Man artist Jonathan Mann and law professor Brian Frye have sued the SEC to help provide regulatory clarity for digital artists using blockchain technology and NFTs.

Posted on July 29, 2024 at 12:26 pm EST.

The cryptocurrency industry has been on the offensive against the SEC lately, and a new lawsuit filed by NFT artists follows suit.

On Monday morning, two artists — musician Jonathan Mann, also known as “Song a Day Mann,” and conceptual artist Brian L. Frye — filed a lawsuit complaint against the SEC wanting to know in advance whether the art they create using NFTs — visual art, music or videos — will be considered a digital asset before incurring prohibitive legal bills, SEC fines or even having to destroy their artwork.

The lawsuit, which seeks declaratory and injunctive relief against “unlawful enforcement actions” by the SEC, aims to stop the agency from doing what it has done so far with cryptocurrencies: bringing enforcement actions against cryptocurrency participants after the fact, rather than setting clear rules of conduct in advance.

“Should artists have to ‘register’ their artwork before selling it to the general public? Should artists be forced to make public disclosures about the ‘risks’ of purchasing their artwork?” the complaint asks. “Should artists be required to comply with the federal securities laws, and the thousands of regulations and reams of interpretive guidance under them, just to offer their works to the public?”

Mann explained the reason for the lawsuit. “From my perspective, it is simply ridiculous to suggest, as I think [SEC Chair] Gary Gensler has, that’s because [my songs] exist on a blockchain, there is some kind of magical, ethereal process that they go through that suddenly turns them into a security.”

Frye agreed: “The SEC has not been adequately challenged… this complaint puts the ball in the SEC’s court and forces it to consider the implications of its arguments.”

Previous SEC Enforcement Actions Against NFT Projects

In late 2023, the SEC investigated whether NFTs could be considered securities. The SEC found in two cease and desist agreement cases—Impact Theory It is Stoner Cat Web Series—that the creators of these projects conducted unregistered offerings of NFTs.

The SEC has announced charges and a settlement with Impact Theory, LLC, a media and entertainment company, for allegedly offering and selling unregistered securities in the form of its Founder’s Keys (“KeyNFTs”) — the SEC referred to them as “purported NFTs.” The SEC’s argument was that Impact Theory made public statements urging potential investors to view the purchase of a KeyNFT as an investment that would increase in value. As part of the settlement, Impact Theory agreed to pay disgorgement of more than $5 million and interest and penalties of approximately $1 million, and to destroy all NFTs in its possession.

The SEC has charged and settled with Stoner Cats 2, LLC for allegedly offering and selling securities in the form of Stoner Cats NFTs that provided exclusive access to the series and future content, with a resale royalty imposed on each trade. The SEC found that the NFTs were offered as investment contracts, again citing the 2.5% royalty as well as statements made by SC2 staff “[tying] the success of the show to the value of the NFTs.” The settlement included a civil monetary penalty and, again, the requirement to destroy all Stoner Cats NFTs in possession.

In both Stoner Cats and Impact Theory, dissenting commissioners Hester Pierce and Mark Uyeda questioned the SEC’s application of the Howey test, writing, in response to Stoner cats“If we applied securities laws to physical collectibles the same way we apply them to NFTs, artists’ creativity would wither in the shadow of legal ambiguity. … The fact that there is money involved does not make NFTs securities.”

Read more: Mila Kunis’ Stoner Cats NFT Project Pays $1 Million to Settle SEC Charges

Seeking Clarity for NFT Artists

The complaint alleges that the Impact Theory It is Stoner cats The cases show that the SEC believes NFT creators are offering and selling securities when they sell NFT art accompanied by marketing and royalty statements, without making clear what circumstances make NFT sales offerings of securities. “Instead, the SEC has continued to obfuscate the issue,” the plaintiffs claim, citing the fact that Gensler himself admitted before the House Financial Services Committee that a physical Pokémon card is not a security, but that an NFT representing a physical card could be.

Watch more about royalties: Are NFT royalties the way forward? How to build a sustainable creator economy

The complaint gives the example of Taylor Swift selling concert tickets, albums, clothing, books, and even guitars that could be bought and sold on secondary markets at higher resale values ​​the more famous she became. However, the complaint states, “It would be completely unreasonable for the SEC to treat Taylor Swift’s tickets or collectibles as securities.” And yet, the plaintiffs say, the SEC’s actions against Impact Theory and Stoner Cats raise questions about the limits of the SEC’s authority in the art world, so “[casting] a shadow over the digital art industry, artistic creation in America, and ultimately the American economy at large.”

Plaintiffs’ attorney Jason Gottlieb, who recently achieved a major turnaround against the SEC in Debt box ruling that required the agency to pay $1.8 million in legal fees, stated: “Art is not just an investment, right? It is literally a reflection of human creativity and the human spirit, and… works of art and artistic expression, of course, are protected by the First Amendment.”

Zack Shapiro, Managing Partner at Rains, commented on the strategy of filing a claim before Mann or Frye issued their NFTs. “This has proven to be, so far, a good strategy for the industry. … I think there’s no excuse for the lack of clarity.” [the SEC has] “The SEC has been very cautious about what has been given so far, and I think it reflects a deliberately hostile stance that the SEC has taken toward the digital asset industry. It has been a huge waste of time and money. They absolutely owe the industry better guidance,” Shapiro said.

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RTFKT Announces Project Animus Reveal, Launches Egg Unboxing Event Amid Mixed Reactions | NFT CULTURE | NFT News | Web3 Culture

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RTFKT Announces Project Animus Reveal, Launches Egg Unboxing Event Amid Mixed Reactions | NFT CULTURE | NFT News | Web3 Culture

RTFKT, the innovative creator-led company renowned for its cutting-edge sneakers and metaverse collectibles, has officially unveiled its highly anticipated collection, Project Animus. This project marks a significant milestone in RTFKT’s journey, introducing a new dimension to its digital universe after a long period of development. However, the initial market response has been disappointing, with the revealed Animi trading at a floor price of 0.05 ETH, significantly lower than the eggs’ floor price of 0.09 ETH.

The Genesis of the Project Animus

Initially introduced in October 2022, Project Animus introduces a unique ecosystem of digital creatures called Animi. These Animi are designed to enhance Clone X’s avatars, offering an immersive and engaging experience for the community. The recent reveal showcased a diverse range of Animi species, each with distinct design traits and elemental attributes, breaking away from traditional trait-based rarity systems.

A New Digital Frontier: The History and Evolution of Project Animus

The Animus Project is RTFKT’s latest intellectual property, promising to revolutionize the NFT space with its unique digital creatures. The journey kicked off on October 8, 2022, with an interactive teaser event called “The Eggsperience.” This livestream event allowed attendees to explore a virtual Animus Research Facility, generating intrigue and excitement among the community.

Renowned artist Takashi Murakami played a significant role in the project, revealing the first Murakami-themed Animus creature, Saisei, on April 30, 2023. This collaboration added a layer of artistic prestige to the project, further elevating its status within the NFT community.

Animus Egg Incubation: A Journey from Egg to Animi

Clone X NFT holders had the opportunity to claim an Animus Egg until March 1, 2024. This was followed by the Animus Egg Hatching event, which ran from May 7 to June 4, 2024. During this period, holders of several RTFKT NFTs, including Clone X, Space Pod, Loot Pod, Exo Pod, and Lux ​​Pod, were able to use a points-based system to increase their chances of hatching rarer Animi. The limited supply of Project Animus Eggs is capped at 20,000, with no public sale planned.

Mixed market reception

Despite the excitement and innovative features, the market reaction to the reveal of Project Animus has been lukewarm. Animi is currently trading at a floor price of 0.05 ETH, significantly lower than the eggs’ floor price of 0.09 ETH. This discrepancy has led to disappointment among some collectors who had high expectations for the project.

What Awaits Us: The Future of Project Animus

Following the reveal, RTFKT plans to release a collection of exclusive Animus Artist Edition characters. Holders of Clone X Artist Edition NFTs are guaranteed to get one of these special editions. The distribution will include 88 Special Edition Animus, with 8 Mythic (Dragon Sakura), 40 Shiny, and 40 Ghost Animus. The odds of receiving a Special Edition Animus are the same for all Eggs hatched, regardless of the points accumulated.

The remaining Animus characters will be distributed among unhatched Eggs, encompassing Special Edition Animus, as well as Cosmic Animus and Murakami Element from Generation 1, Generation 2, and Generation 3.

Conclusion

RTFKT’s Project Animus represents a bold step forward in the NFT space, combining cutting-edge technology with artistic collaboration to create an immersive and innovative digital ecosystem. However, the initial market reception highlights the challenges of living up to high expectations in the ever-evolving NFT landscape. As the project continues to evolve, it promises to deliver unique experiences and opportunities for its community, solidifying RTFKT’s position as a leader in the metaverse and digital collectibles arena.

Summary: RTFKT has unveiled Project Animus, introducing a unique ecosystem of digital creatures called Animi designed to enhance Clone X avatars. Despite the excitement, market response has been mixed, with Animi trading at a lower floor price than eggs. The project kicked off with an interactive event in October 2022, featuring collaborations with artist Takashi Murakami. Following the reveal, RTFKT will release special edition Animus characters. The total supply of Animus Eggs is limited to 20,000, with no public sale planned.

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The Olympics have reportedly ditched Mario and Sonic games in favor of mobile and NFTs

TokenTalk Staff

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The Olympics have reportedly ditched Mario and Sonic games in favor of mobile and NFTs

The long and historic partnership between Nintendo and Sega to create video games for the Olympics reportedly ended in 2020 as event organizers sought opportunities elsewhere.

Lee Cocker, who served as executive producer on several Mario & Sonic Olympics titles, said Eurogamer the International Olympic Committee let the licensing agreement lapse because it “wanted to look at other partners, NFTs and esports.”

“Basically, the IOC wanted to bring [it] “Turn inward and look for other partners so you can get more money,” Cocker added.

The 2024 Summer Olympics kicked off in Paris last week, but there were no Mario & Sonic games available in time for the event to begin – the first time this has happened since the original release in 2007 to coincide with the 2008 Beijing Summer Olympics.

Over the past two decades, there have been four Mario and Sonic adaptations for the Summer Olympics, as well as two for the Winter Olympics.

This year, instead of a Nintendo/Sega title, the IOC released Olympics Go! Paris 2024, a free-to-play mobile and PC title developed by nWay, which has worked on several Power Rangers games.

Olympics Go! allows players to compete in 12 sports and unlock NFTs from the Paris 2024 digital pin collection.

The original Mario & Sonic at the Olympic Games was announced in March 2007 and marked the first time the two mascots – once archrivals in the console wars of the 1990s – appeared together in a game.



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DraftKings abruptly shuts down NFT operation, leaving collectors panicking over vast holdings of digital tokens

TokenTalk Staff

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DraftKings abruptly shuts down NFT operation, leaving collectors panicking over vast holdings of digital tokens

DraftKings, the daily fantasy sports and sports betting company, abruptly shut down a program called Reignmakers on Tuesday, posting a notice on its website and associated app and sending a mass email to some subset of its user base. Reignmakers, which the company launched in 2021, offered pay-to-play competitions in NFL football, PGA Tour golf and UFC mixed martial arts. The decision to eliminate the entire program, DraftKings says, was not made lightly but was forced “due to recent legal developments.”

DraftKings has yet to specify what “recent legal developments” are troubling its now-dead Reignmakers product. The company was sued in U.S. District Court in 2023 by a Reignmakers player named Justin Dufoe, who accuses the company of dealing in unregistered securities, taking advantage of relatively unsophisticated “retail investors,” and failing to market and support Reignmakers to the degree necessary to return to its users the financial benefits expected. DraftKings filed a motion in September to dismiss Dufoe’s complaint, but that motion was denied on July 2. A scheduling conference was held by the parties on July 29; Reignmakers was permanently shut down on July 30. A DraftKings spokesperson reached by Defector on Wednesday declined to confirm whether Dufoe’s complaint is the “recent legal development” that forced the company’s hand.

Users of the Reignmakers NFL product, who in recent days began murmuring on social channels about a notable lack of DraftKings activity so close to the start of the NFL preseason schedule, were caught off guard and, in some cases, devastated by the news. Members of the DraftKings Discord server, where all Reignmakers-related channels were abruptly shut down and locked following the announcement, flooded a general channel in various states of panic, sharing news, theorizing, lamenting, and, in some cases, openly worrying about whether it would be possible to recoup any decent fraction of the genuinely impressive sums of money they had invested in this DraftKings product.

Reignmakers is nominally a daily fantasy contest—users build lineups of players and then pit those lineups against other users’ lineups for cash prizes—but it’s actually a distributor of nonfungible digital tokens (NFTs), originated and sold by DraftKings, and then frequently resold on a dedicated secondary marketplace also hosted by DraftKings. At the lineup-building level, Reignmakers functions like a card-collecting game, with artificial scarcity driving the prices of the most coveted cards to insane, eye-popping heights. Reignmakers NFTs are tiered and offered in timed drops designed to heighten the sense of scarcity. A user can enter a lower-tier contest using a collection of NFTs that may have cost a few hundred dollars in total (or that were earned by purchasing random packs of NFTs that offer generally low odds of scoring top assets) and throw their lot in with hundreds of casual users competing for relatively unimpressive rewards. Random packs at the lowest tier would have prices as low as a few dollars; mid-tier cards—Star and Elite tiers, I’d guess—could cost a player upwards of $1,000.

But players interested in hunting down the biggest payouts, not just from games but from leaderboard prizes and other assorted prizes, would need to enter higher-tier games, and to enter the higher-tier games, a user’s collection needed to include higher-tier NFTs. DraftKings ensured that these cards were extremely scarce and could only be purchased directly on the marketplace at prices that any reasonable person would consider utterly insane.

For example, the highest-tier Reignmaker contests (called the Reignmakers tier, of course) have in the past been limited to listings with at least two of the highest-tier, rarest NFTs (also the Reignmaker tier) plus three NFTs from the second-highest tier (Legendary). NFTs at these tiers are expensive. Not just expensive in the way that, like, a steak dinner is expensive, but expensive in the way that buying even one of them should trigger a mandatory visit to a gambling addiction counselor, if not sirens and a straitjacket. Back in 2022a Reignmaker-level Ja’Marr Chase NFT from something called the Field Pass Promo Set could be purchased directly from the DraftKings Reignmaker Marketplace for a whopping $32,100.

Screenshot via YouTube

Reignmakers users purchased NFTs at various levels with the expectation that owning them would convey better odds of winning contests hosted on DraftKings. This was the gamification element of Reignmakers, which emerged several months after DraftKings began trading and minting its NFTs. But as with all NFTs, a very large part of the real appeal for its buyers was the expectation, however insane, that these worthless, virtually worthless, infinitely duplicable digital images would increase in value over time. Now that both the Reignmakers game and the Reignmakers marketplace have been shut down, Reignmakers NFT holders are worried that their investments may have suddenly lost all monetary value. One Discord user described Tuesday as “a bad day to wake up and realize you have $2,000 worth of unopened NFL Rookie Packs”; Another user asked the group if they should expect “a refund” on the $10,000 they’ve already spent on Reignmakers NFTs this year. A pessimistic Reddit user posted tuesday that they would sue DraftKings if they were forced to take a total loss on a Reignmakers NFT collection worth approximately $100,000.

The game (scam?) was built to make numbers like these not only possible, but somewhat easily achievable. A user who intended to compete from a position of strength in multiple overlapping high-profile contests at the same time, and who had been in the blockchain madhouse for a period of years, could easily have spent six figures on Reignmakers NFTs. DraftKings used non-gaming incentives to entice players to spend more and more money, much like casinos give away free suites to players who over-bet on blackjack. Another Reddit user lamented the loss of the additional prizes and ranking bonuses he had hoped to earn in the upcoming NFL season by having a portfolio of NFTs that had reached the highest levels of value and prestige. “I was already loaded up on 2024 creation tokens and rookie debut cards,” said this Reignmakers userwho claimed his portfolio was finally “close to the top 250 overall.”

Dufoe’s complaint says the NFTs minted by DraftKings for Reignmakers qualify as securities, function like securities, and should be regulated as securities. In its motion to dismiss, DraftKings attempted to position its NFTs as game pieces — eye-wateringly expensive, yes, but essentially the same thing as Magic: The Gathering cards or Monopoly hotels. The court, in resolving these arguments, applied what’s known as “the Howey test,” referencing a case from 1946 in which the U.S. Supreme Court established a standard for determining whether a specific instrument qualifies as an investment contract. Judge Dennis J. Casper, in ruling against DraftKings’ motion, concluded that Dufoe could plausibly argue that Reignmakers’ NFT transactions represent “the pooling of assets from multiple investors in such a manner that all share in the profits and risks of the enterprise,” arguing that DraftKings’ absolute control over the game and marketplace effectively binds the financial interests of the company and the buyers, the latter of whom depend on the viability of both for their NFTs to retain any value.

Reignmakers users are different from Monopoly players in at least one crucial way: A person who buys a Monopoly board has no expectation from Hasbro that those little red and green pieces will appreciate in value. It’s a game! No matter what any hysterically conflicted party may say to the contrary, that’s not what NFT collecting is. DraftKings had been selling Reignmakers NFTs for months before they were gamified, and Dufoe, in his complaint, cites public comments made by DraftKings spokespeople that seem to explicitly position Reignmakers NFTs as assets with independent monetary value beyond their utility in Reignmakers contests. Judge Casper, in his ruling on the motion to dismiss, cites a Twitter account associated with a podcast run by DraftKings CEO Matthew Kalish, who in a tweet described NFTs as “the opportunity to invest in startups, artists, operations, and entrepreneurs all at once.” This is probably the kind of thing that NFT peddlers should stop saying. This advice assumes, of course, that NFTs will continue to exist as instruments on the other side of this and other lawsuits.

DraftKings has posted a worryingly sparse FAQ at the bottom of the your ad Tuesday, anticipating but largely failing to address questions from players who see this as yet another in a long line of brutal blockchain rug pulls. In a hilarious reversal of existing Reignmakers policy, Reignmakers users are now allowed by DraftKings to withdraw their Reignmakers NFTs from their DraftKings portfolios and into their personal NFT wallets, where those NFTs will have precisely zero value, to anyone, for the rest of all time. There’s also vague language about Reignmakers users having the option to “relinquish” their NFTs back to DraftKings in exchange for “cash payments,” subject to “certain conditions” and according to an as-yet-unspecified formula that will take into account, among other things, the “size and quality” of a player’s collection.

Reignmakers users are not optimistic. Those who claim to have been victims of other blockchain market crashes are warning their peers on Discord and Reddit to expect payouts that amount to pennies on the dollar; in the absence of any clarifying information, users are unsure whether cashing out their NFTs from Reignmakers to their personal NFT wallets, for reasons that completely pass any and all understanding, would effectively preclude the possibility of delivering these silly digital tokens back to DraftKings. It remains to be seen what exactly DraftKings has in mind with the “certain conditions” attached to the delivery process. There is much that has yet to be resolved. A DraftKings spokesperson contacted by Defector indicated that more time would be needed to answer a list of specific questions and issued a statement noting that it is “in DraftKings’ DNA to innovate and disrupt to provide the best possible gaming experiences for our customers.” The original complaint is embedded below.

Do you know anything about the demise of Reignmakers, either from the consumer side or from the DraftKings side? We’d love to hear from you. Get it in touch!

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There Will Be No More ‘Mario & Sonic’ Olympics Because of NFTs

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There Will Be No More 'Mario & Sonic' Olympics Because of NFTs

Nintendo and SEGA have been teaming up with the Olympics for several years now in the popular Mario & sonic in the Olympic Games series, but a new report claims the International Olympic Committee has abandoned the series in favor of new deals in eSports and NFTs.

According to Eurogamer“A veteran behind the series,” Lee Cocker, told the outlet that the IOC chose not to renew its license with SEGA and Nintendo, letting it expire in 2020. “They wanted to look at other partners and NFTs and eSports,” Cocker told Eurogamer. “Basically, the IOC wanted to bring [it] turn inward and look for other partners so they could get more money.”

Mario & Sonic at the Olympic Games is a series that has been running since 2008, with six main games covering the regular and Winter Olympics. In the games, players could control various characters from the Mario and Sonic franchises and compete in Olympic sporting events.

It’s no secret that NFTs are a big part of this year’s Paris 2024 Olympics. Olympics Go! Paris 2024 is a mobile and mobile-connected game your site states that players can “join the excitement of the Paris 2024 Olympic Games with nWay’s officially licensed, commemorative NFT Digital Pins collection honoring Paris 2024!”

As for eSports, Saudi Arabia will host the ESports Olympic Games in 2025. This is part of a partnership with the Saudi National Olympic Committee (NOC) that is expected to last for the next 12 years and is expected to feature regular events.

IOC President Thomas Bach said: “By partnering with the Saudi NOC, we also ensure that Olympic values ​​are respected, in particular with regard to the game titles on the programme, the promotion of gender equality and the engagement with young audiences who are embracing esports.”

In other news, Someone claimed they’re suing Bandai Namco because Elden Ring is too difficult.



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