This story was published on January 4, 2022 and updated on February 8, 2023
The verdict is in: A jury in New York has sided with Hermès in the brand's protracted legal battle with MetaBirkin NFT creator Mason Rothschild.
Rothschild, who began selling digital renderings of fur-covered Birkin bags as NFTs in November 2021, is required to pay damages of $133,000 — a sum comprised of the estimated profits from his NFTs ($110,00) and for "cybersquatting" by registering MetaBirkins.com as a web domain ($23,000).
Rothschild listed his MetaBirkins on Opensea, an online NFT marketplace, at a starting price of 0.1 ETH (approximately $450 at the time of their release). Unsurprisingly, Hermès wasn't thrilled by his appropriation of the Birkin, the brand's famed handbag widely considered the crème de la crème of designer wares. On December 16, 2021, the French maison hit the digital artist with a cease and desist, which he promptly responded to with a motion to dismiss.
"Each of the 100 works in Rothschild’s 'MetaBirkins' series is a unique, fanciful interpretation of a Birkin bag," a preliminary statement from Rothschild read. "Rothschild’s art is made with pixels, but the bags are depicted as fur covered. This aspect of Rothschild’s MetaBirkins art comments on the animal cruelty inherent in Hermès’ manufacture of its ultra-expensive leather handbags.
"These images, and the NFTs that authenticate them, are not handbags; they carry nothing but meaning. Hermès asks this Court to suppress Rothschild’s art and to restrain his protected speech in the service of protecting Hermès’ commercial interest in its trademarks."
According to Hermès, the MetaBirkins weren't artistic expression protected under free speech — rather, the works violated the trademarks it holds on Birkin bags and diluted the Birkin name.
According to the company, Rothschild's work "simply rips off Hermès’ famous Birkin trademark by adding the generic prefix ‘meta’... There can be no doubt that this success arises from his confusing and dilutive use of Hermès’ famous trademarks."
By January 2022, Opensea and other NFT platforms removed the MetaBirkins from their sites. According to Reuters, Rothschild sold over $1 million worth of the handbags.
Rothchild took to his Instagram to address the cease and desist served by Hermès, writing that "the first amendment gives me every right to create art based on interpretations of the world around me.
"There is a moving tide of innovation and evolution, and it is your role as a fashion powerhouse to amplify young creatives and artists rather than stomp them out. Your actions can help determine the future of art in the Metaverse."
By confirming that digital items and NFTs must respect trademarks on IRL goods, Hermès' victory sets a precedent for future cases of a similar nature — a blow to creators looking to riff on established brands.
Rothschild released an official statement on the outcome, lamenting, "What happened today was wrong. What happened today will continue to happen if we don’t continue to fight. This is far from over.”
The artist's lead counsel, Rhett Millsaps, added: "Great day for big brands. Terrible day for artists and the First Amendment."
