Benjamin and NFTs: Musings on the Enduring Narrative of Authenticity

Tiffany Kim

In 2021 I learned about non-fungible tokens (NFTs).  As someone who was taking Property (Foundation) when the first newsworthy sales of NFTs graced the media,[1] the timing of this learning could not have been any better.  What struck me then was the enduring narrative of authenticity in the concept of art, and in extension, in the ownership of art.

If the Kernochan Center’s Fall 2021 Symposium on NFTs is any indication (titled "NFTs: Future or Fad?"), NFTs are a huge source of legal curiosity.  Many law firms had published their own commentary on NFTs the month after Beeple’s historic sale.[2]  While there are many possible legal implications raised regarding NFTs, one can perhaps say that many of these implications are based on the question: can NFTs be the new barbed wire?[3]

The appeal of NFTs, as I see it, comes from the fact that it allows one to track an original piece of digital work among the plethora of reproductions on the Internet. That is, NFT preserves the originality of a digital work despite the Internet’s propensity to reproduce digital works and make meaningless its origins.  As one of the originators of NFTs, Anil Dash had said, NFTs, or “monetized graphics” as called back in 2014, was a “blockchain-backed means of asserting ownership over an original digital work.”[4]  Dash also mentioned that during the nascent period of NFTs, Tumblr culture was abound—with “millions of artists and fans [] sharing images and videos completely devoid of attribution, compensation, or context.”

To me, the appeal and rise of NFTs represent the enduring valorization of authenticity.[5]

Walter Benjamin had once predicted a decline in authenticity due to technological reproduction.  In his iconic The Work of Art in the Age of Its Technological Reproducibility, Benjamin defined authenticity as “the here and now of the work of art—its unique existence in a particular place.”[6]  And that due to its “unique existence,” a work of art bears the “mark of the history to which the work has been subject.”[7]  Benjamin also posited that “by replicating the work many times over, it substitutes a mass existence for a unique existence”[8]  Benjamin gave photography and films as examples, but if Benjamin had been alive today, he would have found digital works such as Nyan Cat to be better examples of technological reproducibility.  After all, the complete material/physical detachment of digital art[9] ensures that the work relies only upon technological reproducibility.  The here and now is completely eradicated if you can access Nyan Cat, ever since its conception, anywhere and anytime by anyone.  Alongside this devaluing of “the here and now” of the artwork, the “scope of exhibiting the work of art has increased so enormously with the various methods of technologically reproducing it that... a quantitative shift... has led to a qualitative transformation in its nature.”[10] 

With the NFTs as a new possible property tool and regime, the digital art retains all that while promising that one can have access to authentic and sole ownership.[11]  Ironically enough[12], it is the advancement of technology itself that promises a semblance of traditional private property—one that is highly excludable and maybe even rivalrous.[13]  If property is all about enduring, winning characterization of property, the narrative of authenticity is so enduring that one will bend a seemingly antithetical technology to fit the ideological narrative.

On a wholly theoretical, critical point of view, NFTs almost seem conservative in the conception of art.  Surely Benjamin bemoans the loss of potential technologically reproduced art had for “formulation of revolutionary demands in the politics of art.”[14]  But this would be a detached-from-reality point of view that does not consider the moral rights of an artist, even if the co-founder Dash himself has some doubts on whether NFTs will serve the artists, or crypto investors.[15]

All in all, let us still be entranced by the aura!


[1] See Jacob Kastrenakes, Beeple sold an NFT for $69 million, The Verge (Mar. 11, 2021),

[2] See, e.g., Pratin Vallabhaneni, The Rise of NFTs—Opportunities and Legal Issues, White & Case (Apr. 20, 2021),; NFTs:  Key U.S. Legal Considerations for an Emerging Asset Class, Jones Day (Apr. 2021),; Media, Entertainment and Technology Litigation Update — Non-Fungible Tokens (NFT) — April 2021, Gibson Dunn (Apr. 19, 2021),

[3] Barbed wire as a technological innovation that physically deterred trespassing (grazing) on private property, and would later contribute to strengthened private property rights of one’s land. See Michael Heller & James Salzman, Mine!: How the Hidden Rules of Ownership Control Our Lives 6-7, 125-126 (2021)

[4] Anil Dash, NFTs Weren’t Supposed to End Like This, The Atlantic (Apr. 2, 2021), (emphasis added).

[5] I am shamelessly conflating authenticity and originality, but one should always take caution in conflating like this in critical discourse...

[6] Walter Benjamin, The Work of Art in the Age of its Technological Reproducibility, in 2 The Norton Anthology of Theory and Criticism 1051, 1053 (Harry Zohn & Edmund Jephcott trans., 2010). The work’s title is also translated as The Work of Art in the Age of Its Mechanical Reproduction by other translations.

[7] Id.

[8] Id. at 1054.

[9] That is, until we recognize the environmental cost of producing digital works as material cost.

[10] Id. at 1054, 1057.  Perhaps one might say a digital art is not a quantitative shift, since there are no millions of Nyan Cat videos for every person.  However, the point of quantity in Benjamin’s work is accessibility, which in pre-digital era, was rather synonymous to ownership.

[11] In continuation with the Nyan Cat example, see Jacob Kastrenakes, Nyan Cat is being sold as a one-of-a-kind piece of crypto art, The Verge (Feb. 18, 2021),

[12] Ironic in both that Benjamin associated the advancements in technology with reduction of authenticity, and also because in Thomas W. Merrill and Henry E. Smith’s work on The Numerus Clausus Principle, technology is seen as an opposing force against standardization in property regime.  Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L.J. 1, 42, 69 (2000).  Here, one can arguably say that technology is allowing the previously unstandardized, anarchic type of property to become standardized.  Admittedly, not the most novel assessment if one considers the development of intellectual property—but the intellectual property’s focus was not necessarily on preserving and creating a single, recognizable original.

[13] Regarding rivalrous: the boundaries are still blurry since NFTs of digital artwork really only guarantee a link to the digital artwork. But maybe the comment better suits wearable digital fashion. See Elizabeth Howcroft, Crypto fashion: why people pay real money for virtual clothes, Reuters (Aug. 12, 2021),

[14] 2 Norton Anthology, supra note 6, at 1052.

[15] Dash, supra note 4.