Hermés has won the “MetaBirkins” lawsuit against artist Mason Rothschild, which allegedly infringed on Hermés’s copyright with his Birkin-inspired NFTs, on the premise of first amendment rights not extending to NFTs. The “MetaBirkins” lawsuit involves copyright and trademark law and was brought about as Hermés declared Rothschild was misleading consumers by utilizing “Birkin” in his title, the name of Hermés’s trademark purse.
This is some of the first litigation which investigates digital art and assets on the blockchain as a whole. This comes in the wake of the Sam Bankman-Fried FTX scandal which has resulted in increased regulation in the former Wild West cryptocurrency market.This case is notable for two reasons: 1. It will serve as a landmark case for NFTs and copyright law, and 2. The verdict was decided on the grounds of NFTs not being art. With this, we must deeply consider the impact of the Court declaring what can and can’t be art, and how this extends to art censorship with a neoliberal spin.
Mason Rothschild is a conceptual artist, similar to the likes of Damien Hirst or Jeff Koons, who outsources labor for his projects, the most recent of which was “MetaBirkins”. He created 100 works of “MetaBirkins,” each a unique, ornate rendering of the “Birkin” with a twist: the NFTs reconfigure the timeless handbag with fur, shedding light on luxury fashion’s fraught history of animal cruelty, backlash to which prompted vegan alternatives in many luxury brands, including Hérmes. The works were listed on OpenSea, an online NFT marketplace popular among artists. His work was influenced by Andy Warhol’s Campbell’s Soup Cans (1962), mimicking the use of commercial products to create a commentary surrounding capitalism and wealth. Notably, Warhol’s Campbell Soup Cans were never subject to copyright infringement laws as Campbell most likely viewed the work as free advertising.
Other appropriation artists like Richard Prince and Damien Hirst have faced art lawsuits surrounding copyright infringement and intellectual property. Copyright in art lawsuits typically hinges on two legal rulings, the first of which is fair use. Fair use declares that copyrighted materials can be used without the owner's consent in certain circumstances, including but not limited to: criticism, comment, news reporting, teaching, scholarship and research. The second legal ruling is Rogers v. Grimaldi which engages trademark and intellectual freedom law. The case states that work can be exempt from trademark law if it is “artistically relevant” and “does not explicitly denote sponsorship or endorsement [and] explicitly mislead.”
The grounds for Hermés’s win surrounds NFTs failing the test of artistic relevance.This leads us to the greater concern of this case, echoed among art historians for decades, of who has the power to declare what constitutes art. In this case, it is Hermés and the court. Originally, “MetaBirkins” was a commentary on the exclusivity of the luxury market, serving as a way to democratize. “To purchase one of these coveted bags, you must develop a relationship with a sales representative, establish a purchasing history, and demonstrate your appreciation and knowledge of the brand over time.” Contrarily, one of the “MetaBirkins” can be yours for $450. Many would argue that $450 for an intangible, abstract thing itself is a marker of disposable income and frivolity.
Former chief digital officer of LVMH Ian Rogers weighed in, stating, “Luxury people should understand NFTs, because if you have been in the business of explaining why someone would spend $18,000 on a bag then you are pretty well-suited at explaining why someone would pay $3,000 for an NFT.” Through this lens, the “MetaBirkins” debate is seen as one of privilege; a battle of the bourgeois. This lawsuit has changed the conversation surrounding “MetaBirkins” wholly, however, bringing in a Duchampian logos of what constitutes art and who decides it.
This leaves us with a greater question to ponder: should Hermés, an exclusive luxury fashion conglomerate, have the power to wreak havoc within the NFT market, potentially eliminating the category of NFT art as a whole? Is this simply another symptom of our neoliberal system run by and for the top 1%? Are NFTs themselves a symptom of this system?
While this case will serve as a landmark ruling in mediating copyright law and NFTs, I argue that this case most importantly engages art censorship. Ultimately, a brand that sells $18,000 bags is declaring what art can and can’t be sold, which is a threat to the artistic institution as a whole. Could we see this case extending to other NFTs which engage trademarks creating large-scale censorship of NFTs? Yes, it is very possible.
Art lovers and the public as a whole should be concerned. Any increase of power by already powerful institutions to censor and oppress freedom of thought and speech is dangerous, and as we further entrench ourselves in capitalism, neoliberalism becomes a greater concern and larger threat, prompting repercussions just like those from the “MetaBirkins” case.