Digital art also has legal limits: Mango condemned for rights infringement in NFTs

The Provincial Court of Barcelona issued an unprecedented ruling in the Spanish legal landscape, condemning the fashion group Mango (Punto Fa, S.L.) for the unauthorised exploitation of works of art in digital format.

The ruling, issued by Section 15, specialising in commercial matters, established for the first time in Spain the infringement of copyright in the context of non-fungible tokens (NFTs) and virtual environments such as the metaverse.

The case, brought by the management entity VEGAP (Visual Entidad de Gestión de Artistas Plásticos) on behalf of the heirs of Joan Miró, Antoni Tàpies, and Miquel Barceló, arose from a marketing campaign that accompanied the opening of a Mango store in New York in 2022.

Digital strategy that ended up in court

In May 2022, Mango celebrated the opening of its flagship store on Fifth Avenue in New York with an ambitious digital campaign. The brand exhibited five original works by Spanish artists — Joan Miró, Antoni Tàpies, and Miquel Barceló — in the physical store, belonging to the private collection of Isak Andic, founder of the company.

Beyond the physical exhibition, Mango took the works to a new digital dimension by transforming them into animated compositions and converting them into NFTs. These pieces were disseminated through various platforms, including the OpenSea marketplace and the Decentraland virtual universe, and were also promoted on social networks such as Instagram, TikTok, and LinkedIn.

Owning painting does not give right to digitally exploit or modify it

The digitisation and dissemination of these works without the express consent of their authors or heirs led to the complaint by VEGAP, the entity that represents the rights holders. In its lawsuit, VEGAP alleged the infringement of several rights protected by the Intellectual Property Law: reproduction, transformation, public communication, integrity of the work, and right of dissemination.

The argument held that physically owning a painting does not imply having the right to exploit it digitally or to modify it. According to the lawsuit, the use of these works as part of a marketing strategy without prior license not only violated economic rights but also ‘damaged the image and cultural legacy of the authors’.

The entity claimed the immediate withdrawal of the NFTs and any digital reproduction, the publication of a public rectification, and compensation in excess of 1.3 million euros for economic and moral damages.

Initial ruling in favour of Mango

In January 2024, the Commercial Court number nine of Barcelona dismissed VEGAP’s claim. The first instance judgment acquitted Mango, which argued that it had acted in good faith and without profit.

The defence maintained that its initiative sought to enrich the public experience, promote culture, and pay tribute to the authors, all in the absence of clear regulations on NFTs in the Spanish context. Mango even invoked an interpretation similar to the Anglo-Saxon concept of ‘fair use’.

However, VEGAP appealed and, after months of litigation, Section 15 of the Provincial Court upheld the appeal in its judgment, and the court overturned the initial ruling, condemning Mango for copyright infringement, both economic and moral.

The ruling ordered the immediate cessation of the illicit activity and the destruction of all NFTs and physical or digital materials derived from the altered works. It also obliged Mango to publish the content of the ruling on its website and social networks, as a way of publicly acknowledging that it acted without the artists’ authorisation. Regarding compensation, the resolution set a total amount of 750,380.21 euros.

Precedent in uncharted territory

Although Mango has announced that it will appeal the ruling to the Supreme Court, the ruling already represents a turning point in Spanish legal system. It is the first time that an infringement of copyright has been recognised in the context of NFTs and the metaverse.

Mango insists that its actions were never for profit or intended to commercially exploit the works. They also allege that, until that time, there were no legal precedents or specific regulations clarifying the legal limits of the use of digitised art as NFTs.

For VEGAP, however, the ruling is a resounding victory. Its director general, Javier Gutiérrez, called the ruling ‘historic’ in extending legal protection for visual artists to the virtual environment. He stressed that this resolution reinforces the principle that copyright continues to apply even when technologies are new and disruptive.

The Mango case leaves a clear lesson for the industry: although the legal framework continues to evolve, the rights of authors — their recognition, integrity, and fair remuneration — remain as fundamental pillars, also in the metaverse.