It was just over a year ago when we first highlighted the story of fashion house Hermès opening a lawsuit against NFT creator Mason Rothschild. The story came to an end when the lawsuit ended on Wednesday, with the jury ruling in favor of the global fashion brand.
The ruling is sure to be a pillar consideration in how NFT lawsuits — and potentially legislation — are evaluated in the coming year.
Hermès And The MetaBirkin Debate
Rewind to a simpler time in January 2022. Rothschild’s NFT project, MetaBirkins, is just a few months after its successful minting. But in mid-January last year, Hermès filed a cease and desist, followed by a 47-page lawsuit against Rothschild and the NFT collection. Hermès insists that the collection draws heavily on the iconography and brand likeness of the iconic Birkin bag. Rothschild was unhappy with the brand’s response to the collection, releasing a copy of the cease and desist letter to the public last year and voicing his disdain on social media.
Hermès Birkin bags are a staple in high fashion. They are notoriously expensive and hard to acquire, and even in a reputable seller like TheRealReal, you will not find one of these bags for less than $5K – with some being strong six figures. It’s no wonder that this brand is doing all the legal breaking in terms of protecting potential IP infringing ink. However, the precedent set this week could be an obstacle to the growth of NFT if we do not evaluate NFT art in the same way as other mediums of artistic expression.
Rothschild's MetaBirkins project is currently trading on LooksRare (LOOKS) with a multi-ETH floor. | Source: LOOKS-USD on TradingView.com
Ruling Ing
While Rothschild described the use of the Hermès likeness as fair use, comparing it to Andy Warhol’s iconic ‘Campbell Soup Cans’, the jury did not accept it. The nine-person jury found that the brand was entitled to be awarded damages, which totaled approximately $130,000, and concluded that Rothschild’s work fell outside the First Amendment’s protected right to free speech.
With a growing number of brands across almost every consumer category entering the NFT and web3 space, this is another challenging test for artists who want to push the art fold including IP.
The jury is actually out on concluding that NFTs are more commodities than art, and while that may be true, we disagree with that assessment in this situation (and others). Chalk it up to another ‘L’ for the web3 space as a result of the space’s higher level of nuance and detail. Simply put, it’s just not that simple.
Rothschild issued a multi-tweet statement on Twitter on Wednesday, expressing his disappointment at the conclusion of the legal battle and its implications for the arts moving forward:
Take nine people off the street right now and ask them to tell you what art is but the kicker is that whatever they say now will be the undisputed truth. That’s what happened today.
A multibillion dollar luxury fashion house that says it “cares” about art and artists, but…
— Mason Rothschild 🫠 (@MasonRothschild) February 8, 2023