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Why buy something for vast sums of money that other people can seemingly have for free? This is one of the puzzles confronting people new to both the art market and the market in Non-Fungible Tokens (“NFTs”). Both soaring markets depend on a stark division between real and fake, original and copy. Yet in a world of increasingly cheap and limitless copying, why do people still pay so much for authentic originals when you can download or 3D-print identical copies? What is the mysterious mechanism that creates value in a world of unfettered mechanical and digital reproduction?

For years, the mechanism was copyright law, which was created to solve the problem of how to monetize works that could be copied. But the art market, presaging the NFT market, long ago cast aside copyright as the mechanism to create value in a world of copies. Both markets instead depend on a non-legal market mechanism—what I call the “norm of authenticity.”

Yet, in this Article I show, through a deep exploration of the art market, that the norm of authenticity, the bedrock of that market, is artificial: protean, often arbitrary, and ultimately a mutually agreed upon fiction. And the importance of understanding artificial authenticity is urgent because it now has migrated from art to govern the market for NFTs.

Memes are the paradigm of a new, flourishing creativity. Not only are these captioned images one of the most pervasive and important forms of online creativity, but they also upend many of copyright law’s fundamental assumptions about creativity, commercialization, and distribution. Chief among these assumptions is that copying is harmful. Not only does this mismatch threaten meme culture and expose fundamental problems in copyright law and theory, but the mismatch is even more significant because memes are far from an exceptional case. Indeed, memes are a prototype of a new mode of creativity that is emerging in our contemporary digital era, as can be seen across a range of works. Therefore, the concern with memes signals a much broader problem in copyright law and theory. This is not to say that the traditional creativity that copyright has long sought to protect is dead. Far from it. Both paths of creativity, traditional and new, can be vibrant. Yet we must be sensitive to the misfit between the new creativity and existing copyright law if we want the new creativity to continue to thrive.

Three-dimensional (3D) scanning technology presents cultural organizations with new opportunities to share their collections with a wider audience online, and conserve and archive art objects and antiquities for safekeeping. However, this technology can also present legal challenges when institutions like museums assert ownership, in particular employing copyright notices, over digital copies of public domain art and antiquities in their collections. The public domain comprises the collection of shared works that are free from legal barriers imposed by copyright law. When institutions attach copyright notices to public domain works, the legal language, even if unenforceable in court, chills the public’s use of these scans for far-ranging educational, artistic, and commercial purposes. This Note examines the current uses of 3D technology by cultural institutions and analyzes the current doctrine guiding copyright of digital models. It then discusses some of the reasons why, despite the best reading of the caselaw, cultural institutions continue to assert ownership over and restrict access to 3D models of public domain art. This Note proposes an American analogue to Article 14 of the European Union’s Directive on Copyright in the Digital Single Market. The proposed amendment to the Copyright Act would provide needed clarity to cultural institutions and the public, affirming that public domain works cannot receive copyright protection when reproduced in a digital format. A clear statement rule would reduce the chilling effect by discouraging copyright notices and restrictive terms of use on digital copies of public domain art and antiquities, in turn encouraging more institutions to provide open access to their digital collections.