Copyright Infringement

Jury Rules in Favor of Hermès in MetaBirkins Copyright Case

By ruling in favor of the French luxury brand Hermès in their lawsuit against Mason Rothschild, a digital artist who created the ‘MetaBirkin’ NFT, the federal jury has set a precedent for future NFT copyright cases. The jury returned their verdict after a trial that lasted five days, finding that the NFT based on Birkin handbags, violated the company’s Birkin trademark rights.

NFTs Are Not Protected Speech

In awarding Hermès $133,000 in damages, the jury declared that Rothschild’s NFTs cannot be considered protected speech under the First Amendment. This was a closely watched case, as it was seen as a test of how NFTs should be treated when it comes to copyright law. A copyright expert said it would have “a chilling effect” on NFT digital artists.

Recent lawsuits involving unauthorized NFT artwork include Quentin Tarantino’s NFTs that were based on Pulp Fiction and unauthorized NFT photographs of Olive Garden restaurants.

Pricey Handbags, NFTs and Copyright Infringement

In Rothschild’s MetaBirkin artwork, he reimagined Hermès designer handbags with dyed fake fur. As the artist described it, he was inspired by the fashion industry’s “fur-free” initiatives and their adoption of alternative materials. The website included a disclaimer that the artwork was not authorized, endorsed by or officially connected with Hermès or its subsidiaries or affiliates. In the lawsuit, the luxury brand argued that the disclaimer made the situation worse, since the brand name was excessively used and the page was linked to its official website.

Hermès originally sent the digital artist a cease and desist letter in December 2021. At that time, the MetaBirkins NFTs were pulled from the OpenSea NFT marketplace.

The Artist Responds

Rothschild, in his post-verdict statement, proclaimed the jury’s verdict as a bad day for artists and free speech and a good day for big brands. He decried a “broken justice system” and maintained that this case was a battle between artists without an art school pedigree and a luxury fashion brand. He vowed to continue to fight the ruling.

Artnet – February 8, 2023 – Eileen Kinsella

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