Hours after the Supreme Court overturned Roe v. Wade on Friday, Tucker Carlson took to the airwaves to rail against companies that would pay for employees’ abortion-travel costs. “They’re against families,” the Fox News host said of the firms on “Tucker Carlson Tonight.”
Anonymous bidders in the digital space known as web3 were offering thousands of dollars in cryptocurrency for an NFT made out of a screen image of Carlson. The piece centered on a show last year in which Carlson argued for body autonomy on coronavirus vaccines. The NFT would go on to sell Saturday for 12 eth — about $14,500 — with creator Jenny Holzer saying she will donate the money she makes from the sale to groups including Planned Parenthood, the Center for Reproductive Rights and the D.C.-based advocacy organization PAI.
(An NFT, or a non-fungible token, is a digital image uniquely stamped to its creator. Eth is the name for a popular cryptocurrency linked to the ethereum blockchain, on which many NFTs live.)
The move underscores the freewheeling nature of web3, in which wild injections of money commingle with loose standards of creative ownership. It also makes for one of the odder acts of unintentional philanthropy — activists outraged by the Court’s overturning of Roe raising money on the back of someone who has vigorously attacked the 1973 ruling. Last week, Carlson called Roe “the most embarrassing court decision handed down in the last century” and a “widely acknowledged joke.”
On his May 11, 2021, program Carlson talked to Sen. Ron Johnson (R-Wis.) about Johnson’s decision not to receive a coronavirus vaccine. As Carlson agreed with Johnson — “Well of course; it’s your body, your choice, as we’ve heard for almost 50 years,” the Fox News host said — a chyron displayed the body-autonomy message. “Making an informed choice regarding your own body shouldn’t be controversial,” read the text at the bottom of the screen.
Planned Parenthood in Florida quickly noted the chyron’s parallels to abortion rights. Those echoes also struck a D.C.-based communications strategist named Gillian Branstetter, who observed similarities to Holzer’s work as well. A veteran artist, Holzer is known for combining texts and images to make political points. In the 1970s she created the “Truisms” series, which fashioned art out of such messages as “Abuse of Power Comes As No Surprise,” which she then broadcast in lights over Times Square.
Shortly after, Branstetter screen-captured the image of Carlson, Johnson and the chyron, appended the message “This is like a Jenny Holzer installation or something right?” and tweeted it out to her tens of thousands of followers. That gave Holzer the idea to create an NFT out of Branstetter’s tweet. When news of the court’s draft opinion overturning Roe broke this spring, she decided she would sell it once the ruling came down.
“I will confess a lot of ignorance about NFTs generally, but was happy to give permission for this work to help raise some much-needed funds for abortion access,” Branstetter told The Washington Post via a Twitter DM on Monday. Branstetter is a communications strategist at the ACLU but emphasized that she conducted this action as a private citizen independently of her employer. (Branstetter’s deal with Holzer has her receiving 15 percent of the money the artist receives from the sale, all of which she says she will donate to the DC Abortion Fund.)
In a phone interview, Branstetter said that she remained slightly flummoxed how digital commentary could be so efficiently converted into significant fundraising.
“Don’t ask me to explain how my Tweet turned into almost $15,000 for abortion rights,” she said.
Holzer did not reply to a request for comment The Post made via her studio. In a statement announcing the sale, she explained her rationale for the NFT. “Although the heading was meant to be read as an anti-vaccine remark, the words could also be a pro-choice statement,” she wrote of the chyron.
A Fox News spokeswoman did not reply to a request for comment from the network and Carlson.
Holzer put the NFT up for auction about 12:30 p.m. Friday, just after the decision in Dobbs v. Jackson Women’s Health Organization came down. She listed it at half an eth, or about $600. Within six hours, a quartet of bidders had raised the price to nearly $13,000, before the winning bid was made Saturday around noon.
The sale on the Foundation NFT site listed an anonymous cryptocurrency address as the buyer. The Post located a Twitter account that last November had said it was the owner of the address; that account, which tweeted Friday about the Holzer auction, says it is affiliated with a group called PleasrDAO, which calls itself “a collective of DeFi leaders, early NFT collectors and digital artists who have built a formidable yet benevolent reputation for acquiring culturally significant pieces with a charitable twist.” (DeFi refers to decentralized finance, the term used for financial transactions in web3.)
Despite the sale, who actually owns the NFT is a complicated question, legal experts say. The NFT was created by Holzer off a screen-capture by Branstetter, but the image is of Carlson as he appeared on a Fox-owned show.
“I think it would come down to a fair-use argument, and both Fox and the NFT creators could make a case,” said Darren Heitner, a Florida-based intellectual-property lawyer with deep experience in this new digital space. “But I’d probably lean to the Fox side that this isn’t fair use because of the fact that the NFT is not really transformative and is definitely a commercial use,” he said, citing two of the legal criteria that would prohibit use.
But Enrico Schaefer, another prominent NFT lawyer, said he thought Holzer and Branstetter had a strong claim of ownership. “The First Amendment would protect the project since it was clearly designed as commentary and criticism,” Schaefer said. He added that the charitable use of the funds could also blunt the idea that this had a commercial purpose.
Heitner said one interesting question posed by NFTs, which are often resold, would be whether Fox could theoretically win an injunction that would stop the Carlson NFT from being sold again. “This is a really new area of law, and I don’t think we’ve worked out a lot of the details yet,” he said.
In the meantime those behind the NFT were less keen to get caught up in those details and more eager to spread their abortion rights message.
“Bodily autonomy and self-determination can be fraught, but privacy and health are pillars of the women’s reproductive rights movement,” Holzer wrote on Instagram. “Social health is the goal. We must protect the rights of the individual that protect the health of society.”
Jeremy B. Merrill contributed to this report.
This story has been updated to add commentary from attorney Enrico Schaefer on why the NFT might qualify as fair use.