MetaBirkin NFTs were artistic “experiments”, the creator tells the jury
The artist behind “MetaBirkin” non-fungible tokens fighting the luxury retailer
Mason Rothschild, the 28-year-old Los Angeles-based artist, told the nine-person jury Wednesday that he decided to sell the MetaBirkin NFTs, which depict Hermès’ iconic Birkin handbags completely covered in colorful fur, for about $450 each.
Actual Birkin handbags can range in price from $12,000 to around $200,000 and are Hermès’ best-selling product.
“It was part of the experiment,” said Rothschild, whose birth name is Sonny Estival.
“Let me see if I can sell them for next to nothing,” he said. “Is it the image or the actual product” that provides the value?
The court case is the first to focus on trademark rights in relation to NFTs, and the outcome could have wider implications for whether NFTs are art or commercial assets.
Hermès, which sued Rothschild in January for trademark infringement, argues that the NFT project was more of a commercial venture. He misappropriated the Birkin brand and misled consumers into believing the NFTs were from Hermès, the lawyers said.
Rothschild has countered that his NFTs are works of art protected by the First Amendment.
He first took the stand Tuesday afternoon, describing his childhood interest in fashion and art, and his long history of working with “conceptual art.” His testimony is expected to continue Thursday.
Rothschild said he was already involved in the NFT space before creating MetaBirkins. Earlier in 2021, he said he made his first two NFTs depicting dilapidated luxury chairs. He then created a single “Baby Birkin” NFT that depicted a fetus growing inside a clear Birkin bag, he said, noting that it received media attention.
A “light bulb” went off in his head in September 2021, he told the court, when he saw that Kering Group – a luxury retail conglomerate that owns brands including Gucci, Balenciaga and Yves Saint Laurent – had issued a press release saying. it would stop using fur in all its products. Hermès had made no such promise, he said.
Rothschild said that while coming up with the concept behind the project, he hired a designer to actually create the MetaBirkin NFTs. The two-dimensional, digital bags are covered in animated fur in a variety of colors and themes. Some contain more intricate designs such as the Mona Lisa, the fur colors of a monster character from the movie “Monsters Inc.” and a painting by artist Bob Ross.
The artist testified that he “minted” the 100 NFTs in December 2021, and they were sold based on a “white list,” which included celebrities such as rappers Future and Tyga, and singer and social media influencer Madison Beer.
Rothschild said he created “MetaBirkin’s” Instagram and Twitter accounts to promote the project and set up a server on the messaging platform Discord to interact with his fans. The Discord channel reached as many as 50,000 members, he said.
He said he also sought promotion from NFT influencers and collectors – whom he referred to as “whales” in text messages shown to the jury.
Rothschild said he wanted to create a community around the project by asking and interacting with members of Discord to “give them the feeling that they were in it together.”
“It’s Andy Warhol collectors chatting together,” he said.
The MetaBirkin NFTs went on to sell for tens of thousands of dollars, of which he received a 7.5% royalty, netting him about $70,000 at the time, he told the court.
“Technical Metaverse Ready”
Hermès’ lawyer, Oren Warshavsky of Baker Hostetler LLP, questioned Rothschild about dozens of his personal text messages sent to influencers, investors and designers in the months leading up to the sale of the NFTs.
Warshavsky pointed to Rothschild’s text messages to two brothers looking to invest in future projects. They asked if the MetaBirkins could be used in the metaverse world called “Decentraland”, to which Rothschild replied, “They’re technically ready for the metaverse. Cause fully 3D.”
On the stand, Rothschild said that the current MetaBirkin NFTs are flat images that can only be used as an image in a 3D metaverse, not a wearable object. However, he said the software used to create MetaBirkin’s fur fibers uses a 3D design.
Judge Jed S. Rakoff, who is overseeing the case, wrote in an opinion last March denying Rothschild’s motion to dismiss that his free speech defense would have fallen flat if MetaBirkins was a “practically portable” 3D purse. If that were the case, it would be a “non-speech commercial product.”
Warshavsky also suggested that Rothschild would not have known if the consumers who bought his NFTs mistakenly believed they were buying Hermès products. Close to half of the first 100 customers were only identifiable through their crypto “wallets” or Discord usernames.
Hermès is represented by Baker & Hostetler LLP. Rothschild is represented by Lex Lumina PLLC and Harris St. Laurent & Wechsler LLP.
The case is Hermes International v. Rothschild, SDNY, No. 1:22-cv-00384, 2/1/23.
