Hermès has won its infamous MetaBirkin case, with an American federal court citing artist Mason Rothschild's sale of NFTs infringed Hermès trademarks, even in the digital realm of a largely unregulated metaverse.
A jury of 9 persons awarded damages of 133,000 dollars in favour of Hermès, which included profit of NFT sales and 23,000 dollars for cybersquatting on the MetaBirkins.com domain.
At the time of writing, the website was still operational, where the collection of 100 unique NFT MetaBirkins appeared to remain for sale.
A new era of digital copyright
In what is likely to be a precedent for digital copyrights, assets in the non-physical domain are still viewed through the “lens of intellectual property law,” wrote Bloomberg Law. “Rothschild’s loss may have a chilling effect on NFT artists who want to use trademarks in their projects.” The line between art, commerce and copyright is becoming ever more blurred.
Mr Rothschild launched the 100 MetaBirkin NFT project after a Baby Birkin NFT was sold for 5.5 ether. In response to community demand, Rothschild developed a new series, inspired by the acceleration of fashion’s “fur free” initiatives and embrace of alternative textiles. The bags are covered in brightly coloured, near cartoonish fur.
Last December Hermès sent a cease and desist letter to Mr Rothschild, who at the time claimed the artwork is protected by America's First Amendment. He further urged Hermès to utilise its power as a known fashion entity to help young artists. At this time the NFT marketplace Open Sea that sold Mr Rothschild's MetaBirkins removed the artist’s work.
Mr Rothschild via a spokesperson said Hermès cares about art and artists "but feel they have the right to choose what art is and who is an artist. Not because of what they create but because their CV doesn’t scream ‘artist’ with a pedigree from a world-class art school. That’s what happened today.”
Lawyers for Hermès have argued the artist is a digital speculator, seeking to get rich quick by appropriating the brand MetaBirkins and seeks to make his fortune by swapping out Hermès’ “real life” rights for “virtual rights”.
Early on Thursday Mr Rothschild posted on Instagram: “I put on my big boy pants these past couple weeks. Things didn’t shake out my way but the fight is far from over. I pride myself on being early to things, web3 included, and sometimes that comes with growing pains like these. It’s early. Most people don’t understand what this is but it doesn’t mean they never will. It is my duty and the duty of other creators in this space to show them. We keep it moving. Knocked down. Not dead.”