Hermès wins lawsuit against maker of MetaBirkin’s NFTs
A New York jury ruled Wednesday (Feb. 8) that an artist’s line of “MetaBirkins” NFT (non-fungible token) handbags are not protected by the First Amendment as works of art and violate trademark law, ending a months-long legal battle between the artist and Hermès in one of the first disputes over NFTs and intellectual property rights.
In 2021, digital artist Mason Rothschild (real name Sonny Estival) launched a series of 100 unauthorized virtual Birkins, inspired by the coveted Hermès bags that can sell for six-figure sums. Rothschild’s Birkins included iterations of the handbags covered in colorful fur and jelly, with mastodon teeth and several inspired by famous art, including Vincent van Gogh’s Starry night (1889) and The Great Wave off Kanagawa (1831) by Hokusaki.
Hermès sent Rothschild a cease-and-desist letter in December 2021, writing that his project “blurs the line between genuine Hermès goods … and unauthorized ‘Birkin’ goods such as the Birkin NFTs sold without Hermès’ permission”. MetaBirkins was subsequently removed from OpenSea, the world’s largest NFT marketplace. Hermès filed a lawsuit against Rothschild in January 2022.
Rothschild’s lawyers argued in court that the project was akin to Andy Warhol’s silkscreen reproductions of Campbell’s soup cans and, as art, should be protected by the First Amendment.
“I do not make or sell fake Birkin bags. I have created artwork depicting imaginary, fur-covered Birkin bags,” Rothschild wrote in a statement to his Instagram followers last year.
A nine-person jury ruled Wednesday that Rothchild’s NFTs are not protected speech and are subject to trademark law, which is stricter when it comes to the use of logos, brand names and other distinctive symbols than works of art are subject to.
The jury awarded Hermès $133,000 in total damages. Last year, Sotheby’s sold a Diamond Himalaya Birkin on 30 for $440,000. Rothschild sold more than $1 million worth of virtual Birkin bags, Hermès said.
The ruling, which casts doubt on NFT’s status as art, could have enormous consequences in the digital art space where prices have plummeted in the middle of the so-called “crypto winter”. Last year, Yuga Labs, the parent company of Bored Ape Yacht Club NFTs, sued artist Ryder Ripps, accusing him of ripping off the company’s monkey images to profit from copycat NFTs. Ripps defended his project as satire, and the case is still pending, although a related lawsuit was settled earlier this month.
