Hermès MetaBirkin Lawsuit

Is it the First Amendment violation or a trademark infringement? Hermès, a French old-money fashion brand famous for their hand-made Birkin bags, sued Mason Rothschild, an NFT artist.

Rothschild has successfully sold digital fluffy bags 15.5 ETH (which equals $26,124 as of this writing) worth to 83 owners at Miami Art Basel without Hermès having any idea about MetaBirkins' existence. There’s evidence of why he had and didn’t have a legal right to do so. Let’s dive in.

Legal basis for the accusation

The New York Times mentions that one of Rothschild’s lawyers described a day when the juries awarded Hermès $133,000 in total damages as a “great day for big brands” and a “terrible day for artists.”

Many spectators saw this lawsuit as a fight between ironic and cutting-edge “real art” and outdated greedy brands. Rothschild’s attorney Rhett Millsaps claimed that the First Amendment protects a creator’s right to sell art with the trademarks owned by corporations, but White&Case describes why the First Amendment isn’t automatically applied to this case.

The violation was using the house’s name and trademark everywhere to sell and advertise NFTs without the house’s consent. It was easily proven by a lot of new NFT owners' reviews (not all of them, but many) after discovering that MetaBirkins had nothing to do with Birkins-Birkins apart from their name and shape.

Blake Gopnik, an art critic who supported Rothschild, according to Bloomberg Law, favourably compared MetaBirkins to legendary Andy Warhol’s Campbell soups, but there’s one difference between Rothschild and Warhol here.

MetaBirkin vs Campbell

Compared to Campbells, MetaBirkins were (purposefully?) misleading. Nobody knows how successful the sales would have been if Rothschild had announced that he didn’t collaborate with Hermès.

Not to underestimate the philosophy and the irony of the NFT artwork, but nobody has ever bought Warhol’s Campbell soup assuming that it’s a real soup and feeling disappointed after figuring it out.

The house of Gucci, for instance, has its NFTs, too, and some purchase it only because it’s Gucci. The rest appreciates the work of art and the idea of NFTs itself, but not every buyer does.

Bored Ape Yacht Club case

However, the MetaBirkin case is not the first lawsuit against provocative NFT creators. Ryder Ripps is an artist who copied and sold multiple BAYC’s artworks. He’s been selling identical copies in a form of NFTs, just as the originals have been created. He sold it under the RR/BAYC NFT trademark, and the original name is BAYC NFT.

It surely led to complaints by those who didn’t know that RR/BAYC aren’t sponsored, affiliated, or connected to BAYC at all. It affected the brand’s reputation greatly. Speaking of the First Amendment violation, everyone is free to express themselves, but according to the harm principle, the right to self-expression isn’t unlimited. People should be free to act however they wish unless their actions cause harm to somebody else.

Ripps did know what he was doing, admitted that he did it on purpose, as he is a conceptual artist, and satire is the concept. Not everyone believes that it’s the right way to present conceptual art, though. Quoting the BAYC’s lawyers, “copying is not satire, it is theft. And lying to consumers is not conceptual art, it is deception.”

Conclusion

Of course, art is a form of self-expression interacting with which people can and should be affected differently. That’s the purpose. Some would get inspired, some – offended, some remain indifferent, but real harm is measurable even in a relatively new industry with a small number of similar cases.

Artists, especially those who are brave enough to promote the art of NFTs, will definitely find ways to do so without lawsuits being filed against them.

Satire and irony are probably the two most complicated concepts to express without being cancelled or even sued. It’s a real talent to express oneself nonetheless, as there’s quite a difference between satire and scam.