The following terms of assignment (“Assignment”) govern the sale of the NFT (as defined below) by Aquariphone LLC, an Illinois limited liability company (“Seller”), and the acquisition of such NFT by the party buying the NFT (“Purchaser”) via the Marketplace (as defined below). The Assignment shall become effective as of the date on which the transaction transferring rights in the NFT is completed via the Marketplace (“Effective Date”).
PLEASE READ THE ASSIGNMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION AND AFFECTS YOUR LEGAL RIGHTS. BY PROCEEDING WITH THE TRANSACTION VIA THE MARKETPLACE FOR THE ACQUISITION OF THE NFT, PURCHASER AGREES TO BE BOUND BY THIS ASSIGNMENT AND ALL OF THE TERMS INCORPORATED BY REFERENCE IN THIS ASSIGNMENT. IF PURCHASER DOES NOT AGREE TO THIS ASSIGNMENT, PURCHASER’S SOLE RECOURSE IS TO AVOID PROCEEDING WITH THE ACQUISITION OF THE NFT VIA THE MARKETPLACE
A. Seller owns exclusive rights in the sound recording entitled “Antarctica [NFT Remix]” (“Recording”), for which Purchaser caused the submission of a copyright registration application to the U.S. Copyright Office on July 3, 2022.
B. The Recording is a derivative work of a musical composition entitled “Antarctica” (“Composition”), which Composition was authored and created by William Steffey (“Composer”), for which Purchaser caused the submission of a copyright registration application to the U.S. Copyright Office on July 3, 2022, and to which Seller owns exclusive rights as of the Effective Date.
C. The Recording embodies a musical performance of the Composition, as performed by William Steffey, Michael Koelling, and Jeff Kropp (each, a “Performer” and, collectively, “Performers”), and is properly credited as follows: William Is (such credit, “Attribution”).
D. As of the Effective Date, the Performers have collaborated to create and publish the following versions of sound recordings based on the Composition (other than the Recording) (collectively, “Previously Released Works”): (i) Antarctica, approximately 4:10 in duration, released on January 25, 2016, with International Standard Recording Code (“ISRC”) number uscgh1623962; and (ii) Antarctica (Live), approximately 4:11 in duration, released on May 15, 2020 with ISRC number usdy42067554
E. Seller caused the creation of, and is the sole and exclusive owner of, a brief motion picture (“Visual Element”), which Seller has combined with the Recording to mint (as such term is commonly understood in the blockchain industry) a non-fungible token or similar digital item implemented on a blockchain (such as the Ethereum blockchain), which uses smart contracts to link to or otherwise be associated with the Recording and the Visual Element (such token, “NFT”).
F. Seller intends to convey, transfer, and assign all of Seller’s rights, title, and interests in the NFT (“Transferred Rights”), and for purposes of doing so, is listing the NFT for sale at the online marketplace located at the website www.opensea.io (“Marketplace”).
G. Purchaser intends to acquire the NFT via the Marketplace, and Purchaser understands that this Assignment operates as “Purchase Terms” (as such phrase is defined in the Marketplace’s terms of service as of the Effective Date and as may be amended from time to time).
H. Purchaser understands and acknowledges that acceptance of the Marketplace’s terms of service also constitutes acceptance and ratification of this Assignment.
For the consideration set forth in this Assignment and other good and valuable consideration, the parties agree as follows:
(a) the NFT, Recording, and Visual Element contained within the Transferred Rights, and all issuances, extensions, and renewals thereof, together with the goodwill connected with the use of, and symbolized by, the Transferred Rights;
(b) all rights of any kind whatsoever of the Seller accruing under any of the foregoing provided by applicable law of any jurisdiction, by international treaties and conventions, and otherwise throughout the universe;
(c) any and all royalties, fees, income, payments, and other proceeds now or hereafter due or payable with respect to any and all of the foregoing, including, for the sake of clarification, all revenues generated from exploitation of the Recording prior to the Effective Date, retroactive to the initial release of the Recording; and
(d) any and all claims and causes of action with respect to any of the foregoing, whether accruing before, on, or after the date hereof, including all rights to and claims for damages, restitution, and injunctive and other legal and equitable relief for past, present, and future infringement, misappropriation, violation, misuse, breach, or default, with the right but no obligation to sue for such legal and equitable relief and to collect, or otherwise recover, any such damages.
(a) Previously Released Works. Except as explicitly set forth in this subsection, this Assignment does not convey, transfer, or assign any rights in the Previously Released Works. As between Seller and Purchaser, Seller retains all rights in the Previously Released Works, and may continue exploiting the Previously Released Works in any media, whether now known or hereafter devised, throughout the universe; provided, however, if and only if the Recording incorporates any protectible elements of the Previously Released Works (“Incorporated Elements”), Seller grants to Purchaser the irrevocable limited license to use the Incorporated Elements solely for purposes of exploiting the NFT (including the Recording), subject to Seller’s rights to continue exploiting the Previously Released Works and collecting all revenues stemming from such exploitation by Seller.
(b) Limited Distribution Channels. Seller reserves the right to sell digital copies of the Recording through the following distribution channels (“Limited Digital Distribution Channels”): (i) the URL william.band or any successor website that is designated as the official artist website for William Is; (ii) the online store for William Is hosted on Bandcamp.com and any successor website if the business operated at Bandcamp.com migrates to a different domain; and (iii) the account for William Is hosted on Soundcloud.com and any successor website if the business operated at Soundcloud.com migrates to a different domain.
(c) Composition Ownership. Purchaser acknowledges and agrees that Transferred Rights transferred through this Assignment do not include any rights to the Composition. As between Seller and Purchaser, Seller retains all rights, title, and interest to the Composition.
(d) Composition Licensing. Purchaser shall not have any rights to grant any licenses to use the Composition separate from the Recording. Seller may, in the Seller’s exclusive discretion, grant licenses or transfer any rights in the Composition; provided, however, Seller agrees not to permit any rerecording of the Composition by the Performers without Purchaser’s prior written consent after the Effective Date; provided, further, such restriction on rerecording of the Composition by the Performers shall not affect Seller’s (or any Composer’s) right to provide a license to create sound recordings of the Composition if the performances embodied in such sound recordings do not involve any of the Performers.
(e) Composition License for NFT. Seller grants to Purchaser the irrevocable limited license to use the Composition solely for purposes of exploiting the NFT (including the Recording), subject to Seller’s rights to collect the Composition Revenues (as defined below).
(f) Attribution. Purchaser may convey that the NFT (including the Recording and the Visual Element) are owned and administrated by Purchaser (or Purchaser’s designee(s)). Notwithstanding any provision to the contrary contained in this Assignment, Purchaser shall provide legible and conspicuous credit to convey that the Composition was created by the Composers and that the performances embodies in the Recording are those of the Performers, including through provision of the Attribution in association with all versions of the Recording.
(g) No Transfer of Rights to Derivative Works. Purchaser is permitted (i) to transfer rights in the NFT, subject to payment of the Resale Royalty (as defined below), and (ii) to create derivative works (as defined in the U.S. Copyright Act) of the Recording and the Visual Element (“Derivative Work(s)”). Notwithstanding any provision to the contrary contained in the Assignment, Purchaser shall not transfer or license any rights whatsoever in any Derivative Work(s). Further, Purchaser acknowledges that Purchaser shall not cause or authorize the minting of any non-fungible token or any other token or similar asset using the blockchain or any other technology, whether now known or hereafter devised, of the Recording, the Visual Element, or any Derivative Work(s).
(a) Initial Payment Through Marketplace. As between Seller and Purchaser, Seller shall be entitled to receive one hundred percent (100%) of the gross revenues derived from the initial sale of the Transferred Rights via the Marketplace (“First Sale”), less the fees charged by the Marketplace in connection with the First Sale.
(b) Resale Royalty. Purchaser acknowledges and agrees that the smart contract associated with the NFT shall include a Resale Royalty that shall be paid to Seller in perpetuity. “Resale Royalty” means a royalty equal to ten percent (10%) of the gross proceeds derived from any and all sales of the NFT (or any other portion of the Transferred Rights) after the First Sale (each such sale, a “Resale”), regardless of the marketplace, platform, or method used for any such Resale.
(c) Limited Digital Distribution Revenues. Seller shall be entitled to retain one hundred percent (100%) of all revenues generated through the Limited Digital Distribution Channels (“Limited Digital Distribution Revenues”).
(d) Composition Revenues. Purchaser acknowledges and agrees that Purchaser shall not have any rights in any Composition Revenues (as defined below). “Composition Revenues” means the sum of all Mechanical Royalties (as defined below) and Other Composition Exploitation Revenues (as defined below). “Mechanical Royalties” means a sum equal to seventy-five percent (75%) of all mechanical royalties that would be owed to Seller if Purchaser sought to acquire a license to the Composition for creation of a sound recording under the compulsory licensing regime set forth in Section 115 of the U.S. Copyright Act (“Compulsory Licensing Regime”), at the rates applicable at the time such compulsory license was sought. “Other Composition Exploitation Revenues” means one hundred percent (100%) of all gross revenues derived from exploitation of the Composition in any manner other than through the Compulsory Licensing Regime. Such Other Composition Exploitation Revenues include, without limitation, granting by Seller or the Composers of any synchronization licenses. Purchaser shall notify all third parties inquiring about licensing of the Recording that Seller has retained rights with respect to the Composition, and that Composition Revenues shall be paid to Seller (and Seller’s designee(s)), as may be set forth in any Letters of Direction (as defined below). To the extent that Purchaser’s exploitation of Transferred Rights results in any Composition Revenues being paid to Purchaser, Purchaser shall immediately notify Seller in writing of Purchaser’s receipt of such Composition Revenues, and Purchaser shall transfer all such Composition Revenues to Seller (or Seller’s designee(s)) within five (5) business days of Purchaser’s receipt of response from Seller (or Seller’s designee(s)) within instructions regarding the reconveyance of such Composition Revenues.
(a) Account Access. In addition to the procedures established by the Marketplace, within seven (7) days of completion of the acquisition of the NFT via the Marketplace by Purchaser, Seller shall provide Purchaser with login credentials to the digital distribution account containing the Recording. Purchaser may update the login credentials of such account and insert Purchaser’s own banking and contact information. Purchaser may initiate transfer of any pre-existing collected revenues, as may be permitted by the third-party operator of such account. Purchaser acknowledges that Seller does not own or operate the website(s) where such account is hosted, and Seller agrees that Seller shall not have any liability for any delays in transfer of funds from such account that may be caused to any extent by any third party or any circumstances that are not reasonably within Seller’s control.
(b) Letters of Direction. Within seven (7) days of completion of the acquisition of the NFT via the Marketplace by Purchaser, Seller shall provide to Purchaser drafts of letters of direction (“Letters of Direction”) along with instructions relating to which Letters of Direction must be provided to which third parties. Purchaser shall instruct and cause applicable third parties to make royalty payments for the benefit of Seller (or Seller’s designee(s)) so as to effect Seller’s receipt of Composition Revenues and Limited Digital Distribution Revenues, as set forth in this Assignment.
[END OF ASSIGNMENT]