Can I use someone else's image in my NFT?

Germany

If you upload the image during the minting, you are not allowed to use the image as it will be copied during the upload. If you simply link the NFT with an existing image on the internet (if this is freely accessible) you could do that theoretically from a copyright perspective. You though would need to make clear that you are not the creator/copyright owner of the linked image. Therefore, the overall advice would be not to use someone else´s image in your NFT without permission.

Stefan Ellenberg

IP

Switzerland

There are two separate rights you have to consider. The copyright in the underlying work
(e.g. photograph, illustration, painting, etc.) and the personality right of the individual
depicted. Even if you took the photo of the person you want to use in the NFT and are
therefore typically the copyright owner of the photo, you will require written consent of the
individual featured in the photo, if you want to use it commercially, ie sell it as a NFT.
This however changes if the person who’s image you are using is deceased. Switzerland
does not recognize post-mortem personality rights, ie personality rights extinguish with
the death of the person and are not transferred to the successors/heirs.

Daniel Zohny

Trademarks / Copyright

India

No, the use of someone else’s image in an NFT is not allowed unless that person has given consent to such action as it interferes with the person’s right to privacy and this could cause harm to the person’s reputation.

Asit Gupta

Cyber Law, Compliance, Taxation

Greece

Under Greek law, no formalities are required for the registration of intellectual
property rights – these are granted by law if the artwork is characterized of
“originality”, as interpreted by case law. If the artwork is original, then copyright law
applies and the author must provide a written licence or transfer of his copyright so
that you can use his work. However, there are some exceptions by law that may allow
use of part of the work in the final work associated with the NFT, but it is
recommended that you avoid using another’s copyrighted work without prior
permission to create a NFT.

Vaia Papathanasiou

Private Law

France

Personality rights on one’s image mean an authorization is necessary, save where exceptions like
the right of information apply.

Casey Joly

Intellectual Property

Brazil

No, the image right is protected by the Federal Constitution, article 5, as it was included in the list of fundamental rights and guarantees and, therefore, could not be used without authorization and is subject to moral and material compensation according to the Constitution.

Fabio Cendão

Intellectual Property and Innovation

United States

There are two separate rights you have to consider. The copyright in the underlying work
(e.g. photograph, illustration, painting, etc.) and the publicity right of the individual
depicted. Even if you took the photo of the person you want to use in the NFT and are
therefore typically the copyright owner of the photo, you will require written consent of the
individual featured in the photo, if you want to use it commercially, ie sell it as a NFT. The
right of publicity is governed by state law and is quite similar in its principals. It is
especially well developed in New York and California where it is codified and there is a
large body of case law on the issue. In these and 22 other states the right also applies to
the image of deceased individuals (post-mortem right of publicity). In the event you use a
person’s image and create a new work of art, you may be able to assert that your work is
“transformative” and thus protected by the First Amendment right to freedom of artistic
expression. The viability of this defense however would very much depend on the
circumstances of the individual case.