Law professor and filmmaker Brian Frye, along with songwriter Jonathon Mann, have taken an unprecedented step by filing a lawsuit against the U.S. Securities and Exchange Commission (SEC). They argue that the SEC’s regulatory stance jeopardizes the livelihood of artists and creators who are venturing into the world of non-fungible tokens (NFTs).
Frye and Mann’s lawsuit seeks clarity on whether NFTs fall under the SEC’s jurisdiction. The plaintiffs are pressing the SEC to clarify what actions might trigger securities laws when creating and selling NFTs. They also seek information on whether NFTs need to be registered before they can be sold. The lawsuit points to recent SEC actions suggesting that the regulator is encroaching on the art world, dictating when art must be registered with the federal government prior to sale. The plaintiffs liken NFTs to concert tickets, such as those for Taylor Swift, which are often resold in secondary markets. They argue that it would be absurd for the SEC to classify such tickets or collectibles as securities.
In 2021, Impact Theory, a media company, launched the Founder’s Keys NFT collection, which included tokens of varying rarity levels. The SEC accused the company of promoting unregistered securities in August 2023, marking the regulator’s first case against NFTs. Impact Theory raised approximately $30 million from investors through this collection, drawing the SEC’s scrutiny.
The Commodity Futures Trading Commission (CFTC) considers cryptocurrency a commodity and suggests applying a goods tax regime to it. Conversely, the SEC uses the Howey test to assess cryptocurrencies, viewing them as financial instruments with security-like characteristics. According to the SEC, tokens often meet criteria such as pre-sale fundraising, promises of project improvement through business and marketing efforts, and the use of social media to showcase project capabilities. Despite these classifications, no arbitration body has definitively resolved the regulatory divide between the SEC and the CFTC, leading each agency to operate based on its interpretation of the situation.
While regulatory interest in NFTs remains high, market excitement has significantly waned. In July, NFT sales volume fell to $395.5 million, marking a new low since November 2023, according to CryptoSlam. This decline continues a downward trend observed since March 2024, with a 45% drop in sales volume from Q1 to Q2 2024, falling from $4.1 billion to $2.2 billion. Despite an initial recovery in early July, sales volume slumped again by mid-month. Although July was the third-largest month in transaction volume for 2023, with 9.9 million transactions compared to June’s 5.7 million, the average sale price hit a new low of $39.56, the lowest since September 2023.
The future of NFTs hangs in the balance, threatened by both regulatory scrutiny and a declining market. Frye and Mann’s lawsuit underscores the need for clarity in how NFTs are regulated, arguing that overregulation could stifle creativity and innovation within the blockchain and cryptocurrency space. However, the shrinking market interest may pose an even more significant challenge. Ultimately, the resolution of this lawsuit could have profound implications for the NFT market. As the legal battle unfolds, it remains to be seen whether the SEC will adjust its approach or if the declining market will overshadow regulatory concerns.
