Hermès wins lawsuit against digital artist who created ‘MetaBirkins’, setting precedent for NFT copyright cases
Law
Mason Rothschild’s lawyer called it a “terrible day for artists.”
Hermès, the French luxury brand behind the famously expensive Birkin bag, won a legal victory today over a digital artist known as Mason Rothschild, who produced an NFT titled MetaBirkin.
A federal jury ruled against the artist today, following a five-day trial, ruling that the artist infringed on Hermès’ Birkin trademark rights.
“Great day for big brands. “Terrible day for artists and the First Amendment,” the artist’s general counsel Rhett Millsaps said in a statement.
“This is not the end of this case,” he told Artnet News in an email.
Rothschild, referring to the jurors, said: “Take nine people off the street right now and ask them to tell you what art is, but the kicker is what they say will now become the undisputed truth. That’s what happened today.”
The jury awarded Hermès $133,000 in damages and also found that the artist’s NFTs are not protected speech under the First Amendment.
Lawyers and a representative of Hermès did not comment after the verdict.
The case was closely watched as it is the first major test of how NFTs, which have exploded in popularity in recent years, should be considered in the context of copyright law. One expert predicted “a chilling effect on NFT artists,” as a result of the decision, according to Bloomberg News.
As Artnet News reported earlier this year, similar ownership disputes have emerged over a series of unauthorized NFT images of Olive Garden restaurants and Quentin Tarantino’s NFTs from Pulp Fiction.
In December 2021, Hermès sent the artist a cease and desist letter. MetaBirkins was removed from OpenSea’s primary market around the same time.
In the MetaBirkin project, the artist recreated the designer bags with colored faux fur—a move that, according to the MetaBirkins website, was “inspired by the acceleration of fashion’s ‘fur-free’ initiatives and embrace of alternative textiles.”
A disclaimer at the bottom of the website reads: “We are not affiliated, associated, authorized, endorsed by or in any way officially connected with HERMES, or any of its subsidiaries or affiliates.” In the lawsuit it eventually filed, Hermès argued that the disclaimer actually made matters worse by “excessively” using the brand name and “unnecessarily” linking to the website.
Rothschild’s post-sentence statement continued: “A multi-billion dollar luxury fashion house that says they ‘care’ about art and artists, but feel they have the right to choose what art IS and who IS an artist. Not because of what they make, but because their resume doesn’t scream artist with a pedigree from a world-class art school. That’s what happened today.
A broken legal system that won’t let an art expert talk about art, but lets economists talk about it. That’s what happened today.
What happened today was wrong. What happened today will continue to happen if we do not continue to fight. This is far from over.”
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