What Is the Howey Test?

To determine whether a transaction qualifies as a "investment contract" and thus qualifies as a security, the Howey Test refers to the U.S. Supreme Court cass: the Securities Act of 1933 and the Securities Exchange Act of 1934. According to the Howey Test, an investment contract exists when "money is invested in a common enterprise with a reasonable expectation of profits from others' efforts." 

The test applies to any contract, scheme, or transaction. The Howey Test helps investors and project backers understand blockchain and digital currency projects. ICOs and certain cryptocurrencies may be found to be "investment contracts" under the test.

Understanding the Howey Test

The Howey Test comes from the 1946 Supreme Court case SEC v. W.J. Howey Co. The Howey Company sold citrus groves to Florida buyers who leased them back to Howey. The company would maintain the groves and sell the fruit for the owners. Both parties benefited. Most buyers had no farming experience and were not required to farm the land. 

The SEC intervened because Howey failed to register the transactions. The court ruled that the leaseback agreements were investment contracts.

This established four criteria for determining an investment contract. Investing contract:

1. An investment of money
2. n a common enterprise
3. With the expectation of profit
4. To be derived from the efforts of others

In the case of Howey, the buyers saw the transactions as valuable because others provided the labor and expertise. An income stream was obtained by only investing capital. As a result of the Howey Test, the transaction had to be registered with the SEC.

Howey Test and Cryptocurrencies

Bitcoin is notoriously difficult to categorize. Decentralized, they evade regulation in many ways. Regardless, the SEC is looking into digital assets and determining when their sale qualifies as an investment contract.

The SEC claims that selling digital assets meets the "investment of money" test because fiat money or other digital assets are being exchanged. Like the "common enterprise" test. 

Whether a digital asset qualifies as an investment contract depends on whether there is a "expectation of profit from others' efforts."

For example, buyers of digital assets may be relying on others' efforts if they expect the project's backers to build and maintain the digital network, rather than a dispersed community of unaffiliated users. Also, if the project's backers create scarcity by burning tokens, the test is met. Another way the "efforts of others" test is met is if the project's backers continue to act in a managerial role.

These are just a few examples given by the SEC. If a project's success is dependent on ongoing support from backers, the buyer of the digital asset is likely relying on "others' efforts."

Special Considerations

If the SEC determines a cryptocurrency token is a security, many issues arise. It means the SEC can decide whether a token can be sold to US investors and forces the project to register. 

In 2017, the SEC ruled that selling DAO tokens for Ether violated federal securities laws. Instead of enforcing securities laws, the SEC issued a warning to the cryptocurrency industry. 

Due to the Howey Test, most ICOs today are likely inaccessible to US investors. After a year of ICOs, then-SEC Chair Jay Clayton declared them all securities. 

Howey Test FAQs

How Do You Determine If Something Is a Security?

The Howey Test determines whether certain transactions are "investment contracts." Securities are transactions that qualify as "investment contracts" under the Securities Act of 1933 and the Securities Exchange Act of 1934.

The Howey Test looks for a "investment of money in a common enterprise with a reasonable expectation of profits from others' efforts." If so, the Securities Act of 1933 and the Securities Exchange Act of 1934 require disclosure and registration.

Why Is Bitcoin Not a Security?

Former SEC Chair Jay Clayton clarified in June 2018 that bitcoin is not a security: "Cryptocurrencies: Replace the dollar, euro, and yen with bitcoin. That type of currency is not a security," said Clayton.

Bitcoin, which has never sought public funding to develop its technology, fails the SEC's Howey Test. However, according to Clayton, ICO tokens are securities. 

A Security Defined by the SEC

In the public and private markets, securities are fungible and tradeable financial instruments. The SEC regulates public securities sales.

The Supreme Court defined a security offering in SEC v. W.J. Howey Co. In its judgment, the court defines a security using four criteria:

• An investment contract's existence
• The formation of a common enterprise
• The issuer's profit promise
• Third-party promotion of the offering

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Creating 10,000 auto-generated artworks, deploying a smart contract to the Ethereum / Polygon blockchain, setting up some tools, etc.

There is so much to do from launching to running an NFT project. Creating parts for artworks, generating 10,000 unique artworks and metadata, creating a smart contract and deploying it to a blockchain network, creating a website, creating a Twitter account, setting up a Discord server, setting up an OpenSea collection. In addition, you need to have MetaMask installed in your browser and have some ETH / MATIC. Did you get tired of doing all this? Don’t worry, once you know what you need to do, all you have to do is do it one by one.

To be honest, it’s best to run an NFT project in a team of three or more, including artists, developers, and marketers. However, depending on your motivation, you can do it by yourself. Some people might come later to offer help with your project. The most important thing is to take a step as soon as possible.

Creating Parts for Artworks

There are lots of free/paid software for drawing, but after all, I think Adobe Illustrator or Photoshop is the best. The images of Skulls In Love are a composite of 48x48 pixel parts created using Photoshop.

How Many Parts Should You Create?

Are you wondering how many parts you should create to avoid duplication as much as possible when generating your artworks? My friend Stephane, a developer, has created a great tool to help with that.

Generating 10,000 Unique Artworks and Metadata

I highly recommend using the HashLips Art Engine to generate your artworks and metadata. Perhaps there is no better artworks generation tool at the moment.

GitHub: https://github.com/HashLips/hashlips_art_engine
YouTube:

Storing Artworks and Metadata

Ideally, the generated artworks and metadata should be stored on-chain, but if you want to store them off-chain, you should use IPFS. Do not store in centralized storage. This is because data will be lost if the server goes down or if the company goes down. On the other hand, IPFS is a more secure way to find data because it utilizes a distributed, decentralized system.

Storing to IPFS is easy with Pinata, NFT.Storage, and so on. The Skulls In Love uses Pinata. It’s very easy to use, just upload the folder containing your artworks.

Creating and Deploying a Smart Contract

You don’t have to create a smart contract from scratch. There are many great NFT projects, many of which publish their contract source code on Etherscan / PolygonScan. You can choose the contract you like and reuse it. Of course, that requires some knowledge of Solidity, but it depends on your efforts. If you don’t know which contract to choose, use the HashLips smart contract. It’s very simple, but it has almost all the functions you need.

GitHub: https://github.com/HashLips/hashlips_nft_contract

Creating a Website

The website here is not just a static site to showcase your project, it’s a so-called dApp that allows you to access your smart contract and mint NFTs. In fact, this level of dApp is not too difficult for anyone who has ever created a website. Because the ethers.js / web3.js libraries make it easy to interact with your smart contract. There’s also no problem connecting wallets, as MetaMask has great documentation.

The Skulls In Love uses a simple, fast, and modern dApp that I built from scratch using Next.js. It is published on GitHub, so feel free to use it.

Why do people mint NFTs on a website?

Ethereum’s gas fees are high, so if you mint all your NFTs, there will be a huge initial cost. So it makes sense to get the buyers to help with the gas fees for minting.
What about Polygon? Polygon’s gas fees are super cheap, so even if you mint 10,000 NFTs, it’s not a big deal. But we don’t do that. Since NFT projects are a kind of game, it involves the fun of not knowing what will come out after minting.

Creating a Twitter Account

I highly recommend creating a Twitter account. Twitter is an indispensable tool for announcing giveaways and reaching more people. It’s better to announce your project and your artworks little by little, 1–2 weeks before launching your project.

Creating and Setting Up a Discord Server

I highly recommend creating a Discord server as well as a Twitter account. The Discord server is a community and its home. Fans of your NFT project will want to join your community and interact with many other members. So, carefully create each channel on your Discord server to make it a cozy place for your community members.

If you are unfamiliar with Discord, you may be particularly confused by the following:
What bots should I use?
How should I set roles and permissions?
But don’t worry. There are lots of great YouTube videos and blog posts about these.
It’s also a good idea to join the Discord servers of some NFT projects and see how they’re made. Our Discord server is so simple that even beginners will find it easy to understand. Please join us and see it!

UPDATED: As your Discord server grows, you cannot manage it on your own. In this case, you will be hiring several moderators, but choose carefully before hiring. And don’t give them important role permissions right after hiring. Initially, the same permissions as other members are sufficient. After a while, you can add permissions as needed, such as kicking/banning, using the “@every” tag, and adding roles. Again, don’t immediately give significant permissions to your Mod role. Your server can be messed up by fake moderators.

Setting Up Your OpenSea Collection

Before you start selling your NFTs, you need to reserve some for airdrops, giveaways, staff, and more. It’s up to you whether it’s 100, 500, or how many.

After minting some of your NFTs, your account and collection should have been created in OpenSea. Go to OpenSea, connect to your wallet, and set up your collection. Just set your logo, banner image, description, links, royalties, and more. It’s not that difficult.

Promoting Your Project

After all, promotion is the most important thing. In fact, almost every successful NFT project spends a lot of time and effort on it.

In addition to Twitter and Discord, it’s even better to use Instagram, Reddit, and Medium. Also, register your project in NFTCalendar and DISBOARD

About Promoters

You’ll probably get lots of contacts from promoters on your Discord, Twitter, Instagram, and more. But most of them are scams, so don’t pay right away. If you have a promoter that looks attractive to you, be sure to check the promoter’s social media accounts or website to see who he/she is. They basically charge in dollars. The amount they charge isn’t cheap, but promoters with lots of followers may have some temporary effect on your project. Some promoters accept 50% prepaid and 50% postpaid. If you can afford it, it might be worth a try. I never ask them, though.

When Should the Promotion Activities Start?

You may be worried that if you promote your project before it starts, someone will copy your project (artworks). It is true that some projects have actually suffered such damage. I don’t have a clear answer to this question right now, but:

• Do not publish all the information about your project too early
• The information should be released little by little
• Creating artworks that no one can easily copy
  I think these are important.
  If anyone has a good idea, please share it!

About Giveaways

When hosting giveaways, you’ll probably use multiple social media platforms. You may want to grow your Discord server faster. But if joining the Discord server is included in the giveaway requirements, some people hate it. I recommend holding giveaways for each platform. On Twitter and Reddit, you should just add the words “Discord members-only giveaway is being held now! Please join us if you like!”.

If you want to easily pick a giveaway winner in your browser, I recommend Twitter Picker.

Precautions for Distributing Free NFTs

If you want to increase your Twitter followers and Discord members, you can actually get a lot of people by holding events such as giveaways and invite contests. However, distributing many free NFTs at once can be dangerous. Some people who want free NFTs, as soon as they get a free one, sell it at a very low price on marketplaces such as OpenSea. They don’t care about your project and are only thinking about replacing their own “free” NFTs with Ethereum. The lower the floor price of your NFTs, the lower the value of your NFTs (project). Try to think of ways to get people to “buy” your NFTs as much as possible.

Ethereum vs. Polygon

Even though Ethereum has high gas fees, NFT projects on the Ethereum network are still mainstream and popular. On the other hand, Polygon has very low gas fees and fast transaction processing, but NFT projects on the Polygon network are not very popular.

Why? There are several reasons, but the biggest one is that it’s a lot of work to get MATIC (on Polygon blockchain, use MATIC instead of ETH) ready to use. Simply put, you need to bridge your tokens to the Polygon chain. So people need to do this first before minting your NFTs on your website. It may not be a big deal for those who are familiar with crypto and blockchain, but it may be complicated for those who are not. I hope that the tedious work will be simplified in the near future.

If you are confident that your NFTs will be purchased even if they are expensive, or if the total supply of your NFTs is low, you may choose Ethereum. If you just want to save money, you should choose Polygon. Keep in mind that gas fees are incurred not only when minting, but also when performing some of your smart contract functions and when transferring your NFTs.
If I were to launch a new NFT project, I would probably choose Ethereum or Solana.

Conclusion

Some people may want to start an NFT project to make money, but don’t forget to enjoy your own project. Several months ago, I was playing with creating generative art by imitating the CryptoPunks. I found out that auto-generated artworks would be more interesting than I had imagined, and since then I’ve been completely absorbed in generative art.

This is one of the Skulls In Love artworks:

This character wears a cowboy hat, black slim sunglasses, and a kimono. If anyone looks like this, I can’t help laughing!

The Skulls In Love NFTs can be minted for a small amount of MATIC on the official website. Please give it a try to see what kind of unique characters will appear 💀💖

Thank you for reading to the end. I hope this article will be helpful to those who want to launch an NFT project in the future ✨