One of the first major NFT-related lawsuits to be heard in the US culminated in a decisive loss for an artist as the luxury brand Hermès triumphed.
Hermès had sued the artist Mason Rothschild, whose “MetaBirkins” NFT project, the company claimed, deliberately sought to dilute the luxury brand’s trademark. In the Southern District Court of New York today, a jury sided with Hermès, saying that Rothschild’s NFTs failed a test that would allow them to be considered art.
The company is now set to be awarded $133,000 in damages.
“MetaBirkins” was an online art project in which Rothschild played on Hermès’s famed Birkin bags and their loyal cult following. His were covered in fake fur. Speaking of the Birkin bags sold by Hermès, he told Yahoo! Finance that he viewed the project as “an experiment to see if I could create that same kind of illusion that it has in real life as a digital commodity.”
A single NFT from the project was priced by Rothschild at $125, and the artist estimated that he made about $125,000 from the series. In total, “MetaBirkins” brought in an estimated $1.1 million, according to Hermès.
In 2021, not long after the project was unveiled on a dedicated website, Hermès sent Rothschild a cease and desist letter. “I will not apologize for creating it,” Rothschild responded, writing that the work was “a commentary on fashion’s history of animal cruelty.”
“Art is art,” Rothschild said at the time. Hermès did not view it this way, filing suit against him in January 2022.
To decide the matter, Judge Jed S. Rakoff required jurors utilize a test that would determine whether or not Rothschild’s NFTs were artistic expression or not. The jurors ultimately said that these NFTs did not pass the test, meaning that they were not art and they could have succeeded in obscuring some users’ understanding that the MetaBirkins were not Hermès products.
Signs that the trial may be headed this way arrived earlier this month, when the art critic Blake Gopnik—who wrote a biography of Andy Warhol, another artist who merged art and commerce—was not allowed to testify as an expert witness.
What this means for other NFT projects going forward remains an open question, although Rothschild’s legal team presented the case as a potentially dire one for artists. One of his lawyers told the New York Times, “Great day for big brands. Terrible day for artists and the First Amendment.”
A representative for Hermès did not immediately respond to a request for comment.
The case loosely recalls another NFT-related one that is currently pending. That one pits the artist Ryder Ripps against Yuga Labs, the producer of the popular Bored Ape Yacht Club series, who claimed that Ripps infringed on its copyright by, in his words, “appropriating” BAYC images for one of his own NFT projects.