Buying an NFT does not, on its own, give you the copyright or the trade mark in the work it points to. What the holder gets is a token recorded on a blockchain plus whatever licence the issuer grants, and those terms decide what the holder can actually do. MiCA, the EU Markets in Crypto-Assets Regulation, adds a second question: unique NFTs are outside it, but fractionalised tokens, large collections and tokens that share royalties can fall within it or within securities law. This guide is for creators, brands and platforms that tokenise intellectual property in the EU and beyond.
Key takeaways
- An NFT transfer moves the token, not the underlying rights. Under Spanish law, owning the medium gives no exploitation rights in the work (Article 56 of the Intellectual Property Act).
- Any assignment of copyright must be in writing, and unspecified uses, duration or territory are read narrowly.
- Article 2(3) of MiCA excludes crypto-assets that are unique and not fungible, but the label “NFT” is not enough: ESMA and the competent authorities look at substance.
- Large series, fractionalised NFTs and tokens whose value depends on the rest of the collection may fall within MiCA; tokens paying a share of income may be financial instruments.
- The MiCA transitional period for crypto-asset service providers ended on 1 July 2026.
What does an NFT holder actually own?
An NFT (non-fungible token) is a unique entry in a blockchain ledger, usually linked by metadata to a file stored elsewhere: an image, a music track, a 3D model or a document. The smart contract records who holds the token and can automate resale royalties. None of that, by itself, transfers intellectual property.
Copyright belongs to the author or to whoever acquired it by contract. Spanish law illustrates the point clearly. Under the Spanish Intellectual Property Act (Royal Legislative Decree 1/1996):
- Article 56(1): whoever acquires ownership of the medium in which a work is incorporated obtains, by that title alone, no exploitation right in the work.
- Article 45: every assignment of rights must be made in writing.
- Article 43: an assignment is limited to the rights, modes of exploitation, duration and territory agreed. If the duration is not stated, it is limited to five years; if the territory is not stated, to the country where the assignment is made; if the modes of exploitation are not specified, to those strictly necessary for the purpose of the contract.
Other countries’ laws have their own rules, so each market has to be checked. Trade marks follow the same logic: holding a token that displays a brand gives no right to use that brand on goods or services unless the owner grants a licence.
| What the buyer may expect | What usually happens without a written licence |
|---|---|
| Ownership of the artwork | Holds the token; the copyright stays with the creator or issuer |
| Right to display the image online | Only if the token terms allow it, and within the limits stated |
| Commercial use (merchandise, advertising) | Not granted unless expressly licensed |
| Use of the brand shown in the work | Not granted; the trade mark owner keeps control |
| Rights after resale | Depends on whether the licence follows the token to each new holder |
When does MiCA apply to NFTs and tokenised IP?
Regulation (EU) 2023/1114 (MiCA) regulates the offer to the public and admission to trading of crypto-assets, and crypto-asset services, in the EU. Article 2(3) states that it does not apply to crypto-assets that are unique and not fungible with other crypto-assets. Recital 10 gives digital art and collectibles as examples. Recital 11 sets the limits: fractional parts of a unique token are not unique; issuing NFTs in a large series or collection is an indicator of fungibility; a unique identifier is not enough; and the assets or rights represented must themselves be unique.
The ESMA guidelines on the qualification of crypto-assets as financial instruments (final report of 17 December 2024) tell authorities not to rely on technical features or token standards. They point to indicators such as intrinsic value and rarity, utility and functionality, and exclusive rights for the holder, and suggest an “interdependent value test”: if a token’s value mainly comes from its comparability with others in the same collection, for example through a common trading price, it should not benefit from the exclusion. Fractionalised NFTs should not automatically be treated as unique.
| Token structure | Likely regulatory position |
|---|---|
| One-of-one digital artwork with a clear licence | Generally outside MiCA (Article 2(3)) |
| Large collection traded at a common floor price | Fungibility indicator; may be a crypto-asset within MiCA |
| Fractions of a single NFT, or of a patent or catalogue | Not automatically unique; assess under MiCA or securities law |
| Token paying a share of royalties or profits | May be a financial instrument under MiFID II, outside MiCA but inside securities regulation |
| Token giving access to an existing service | A utility token; its offer is exempt from MiCA’s offer rules (Article 4(3)(c)) while the service exists |
Where a token is within MiCA and not an asset-referenced or e-money token, an offer to the public generally requires a legal-person offeror and a crypto-asset white paper notified to the competent authority (Article 4), with exemptions such as offers to fewer than 150 persons per Member State or below EUR 1 million over twelve months. The ESMA guidance also reminds issuers that tokens meeting the criteria of financial instruments are subject to MiFID II whatever their label.
What changed on 1 July 2026?
MiCA has applied in full since 30 December 2024. Under Article 143(3), crypto-asset service providers already operating under national law could continue until 1 July 2026 or until their MiCA authorisation was granted or refused, and Member States could shorten that period. ESMA’s MiCA page sets out these transitional periods, which ran until 1 July 2026 at the latest. A marketplace that also deals in tokens within MiCA’s scope needs authorisation; one that deals only in genuinely unique NFTs does not, but must be able to justify that classification.
Tokenised IP: licences, royalties and registered rights
Tokenisation projects increasingly go beyond art: music royalties, film catalogues, patent licensing income or brand licences. Three points matter in practice.
- Registered rights live in registers. A token transfer does not change the owner of a patent or trade mark in the records of the EUIPO, the Spanish Patent and Trademark Office (OEPM) or any national office; the assignment has to be documented and recorded there.
- Income tokens are financial products until proven otherwise. A token that promises a share of royalties looks like an investment and should be checked against MiCA and MiFID II before launch.
- The licence must travel with the token. If holders change, the terms should say clearly whether each new holder receives the same licence, and under which law.
Brands launching their own NFTs should also look at their trade mark specifications: the Nice Classification now lists terms such as “downloadable digital image files authenticated by non-fungible tokens [NFTs]” in Class 9, so protection for digital goods needs its own filing strategy.
What this means for your business
- Write the licence before you mint: rights granted, permitted uses, duration, territory, resale and governing law.
- Confirm title to every work and brand in the collection, including contributions by freelancers or agencies.
- Classify the token under MiCA and MiFID II with the ESMA indicators in mind, and keep the analysis on file.
- Extend trade mark protection to virtual goods and NFT-related services in the EU and in the Latin American and African markets you sell into.
Our team for NFT licensing and digital asset intellectual property can draft the token terms and check title across markets, while MiCA classification is handled within the same META Channel group. For the trade mark side, see our trade mark protection for digital goods across Europe and Latin America.
Where companies get NFT intellectual property wrong
- Selling “ownership” without a licence. Marketing that promises ownership of the art while the terms grant nothing invites disputes and consumer complaints.
- Minting third-party content. Fan art, photographs or brand logos in a collection can lead to infringement claims against the issuer.
- Assuming every NFT escapes MiCA. A 10,000-piece collection or a fractionalised token may not.
- Promising royalties without a securities analysis. Income-sharing tokens can trigger financial regulation.
- Forgetting the register. A tokenised patent or mark whose register still shows the old owner is a weak asset in due diligence.
Frequently asked questions
Does buying an NFT give me the copyright in the artwork?
Generally not. The NFT transfers a token, while the copyright remains with the creator or issuer unless a written assignment says otherwise. Under Spanish law, acquiring the medium of a work gives no exploitation rights by that title alone. What you can do with the work depends on the licence attached to the token, so read the terms before buying.
Are NFTs excluded from MiCA?
Only if they are genuinely unique and not fungible. Article 2(3) of MiCA excludes such crypto-assets, but recital 11 and the ESMA guidelines say fractional parts are not unique, large series indicate fungibility and a unique identifier is not enough. Authorities look at the substance of the token, not at what the issuer calls it.
Can a tokenised royalty stream be a financial instrument?
It can. A token that gives holders a share of royalties or profits may have features comparable to transferable securities. In that case MiCA does not apply, but MiFID II and other securities rules may. The analysis should be done before launch, together with the copyright or patent licence that generates the income.
Can IP Global Guard structure the IP side of an NFT or tokenisation project?
Yes. We review title to the underlying works and brands, draft the licence that travels with the token, and coordinate trade mark protection for digital goods across Europe, Latin America and Africa from a single point of contact. MiCA questions are handled by the regulatory team within the same META Channel group.
How IP Global Guard can help you tokenise safely
A token is only as valuable as the rights behind it. IP Global Guard, the IP services line of META Channel Corporation Limited, aligns copyright, trade mark and licensing work for digital assets across more than 25 jurisdictions in Europe, Latin America and Africa, with one strategy and one billing relationship; see our coverage across the corridor.
Tell us what you plan to tokenise, who owns it today and where you will sell. We will map the rights, the licence terms and the regulatory questions before you mint. Send us your project outline.
This article is general information, not legal advice, and does not replace an assessment of your specific project.
Sources
- Regulation (EU) 2023/1114 on markets in crypto-assets (MiCA), Articles 2, 3, 4, 143 and 149, recitals 10 and 11 (31 May 2023)
- ESMA, Final Report: Guidelines on the qualification of crypto-assets as financial instruments (17 December 2024)
- ESMA, Markets in Crypto-Assets Regulation (MiCA) page
- BOE, Royal Legislative Decree 1/1996, Spanish Intellectual Property Act (consolidated text)
- WIPO, Nice Classification NCL (13-2026), Class 9 (in force 1 January 2026)
