Court finds artist infringed Hermes’ copyright with ‘MetaBirkins’ NFTs

In one of the first intellectual property cases brought to federal court involving non-fungible tokens (NFTs), fashion brand Hermes has won a copyright lawsuit against an artist who created NFT versions of Birkin bags.

The NFTs, which were all digital, were placed by artist Mason Rothschild – whose legal name is Sonny Estival – as an “homage” to Hermes’ designer Birkin bags. After the fashion brand sent him a cease and desist letter last year, Rothschild said it argued the NFTs would be shielded from trademark claims because “the First Amendment gives me every right to create art based on my interpretations of the world around me.” Motel law reports.

A jury disagreed and awarded Hermes $133,000 in damages for trademark infringement, dilution and cybersquatting over 100 NFTs he created that were associated with the handbags. Hermes Birkins typically sell for tens of thousands of dollars, and the company has sold over $1 billion worth of Birkins in the United States to date.

As Reuters reports, the case was closely watched because it had the potential to clarify how trademark law would apply to NFTs. Rothchild’s lawyer called the result a “terrible day for artists and the First Amendment.”

Hermes positioned Rothschild as a “digital speculator” as part of a “get-rich-quick” scheme that began in December 2021 and by the beginning of the following month had increased in value to over $1 million.

Rothchild’s defense was largely based on pointing to the work of Andy Warhol, particularly his soup can art which was not authorized by Campbell’s.

The reference to Warhol is particularly notable given an ongoing case involving the artist and fair use, which the Supreme Court will rule on later this year. Although there is a clear nuanced difference between the two cases, there are tones of similarity. Warhol’s use of Lynn Goldsmith’s image of Prince has been the main point of contention, and most copyright experts have agreed that Warhol’s work was not significantly transformative enough to qualify as Fair Use. Lower courts have so far agreed, and it is not clear whether the Supreme Court will overrule them.

A major difference between these two cases is that Hermes indicated that while Rothchild was creating its NFTs, it was also considering a digital art series — an effort that Rothchild’s work thwarted. Nevertheless, the court results to this point are consistent. That is, at least so far.

Image credit: Top image, Metabirkins by Mason Rothschild