Hermès wins lawsuit against maker of MetaBirkins NFTs

A New York jury ruled Wednesday (8 February) that an artist’s line of “MetaBirkins” NFT (non-fungible token) handbags is not protected by the First Amendment as artwork and violated trademark law, ending a months-long legal battle between the artist and Hermès in one of the first disputes over NFTs and intellectual property law.

In 2021, digital artist Mason Rothschild (real name Sonny Estival) launched a line of 100 unauthorised virtual Birkins, inspired by the coveted Hermès bags that can sell for six-figure sums. Rothschild’s Birkins included iterations of the handbags covered in colourful fur and jelly, with mammoth tusks and several inspired by famous art, including Vincent van Gogh’s Starry Night (1889) and The Great Wave off Kanagawa (1831) by Hokusaki.

Hermès sent Rothschild a cease-and-desist letter in December 2021, writing that his project “blurs the line between genuine Hermès merchandise …  and unauthorized ‘Birkin’ goods like the Birkin NFTs sold without Hermès’ permission”. The MetaBirkins were subsequently removed from OpenSea, the world’s largest NFT marketplace. Hermès filed a lawsuit against Rothschild in January 2022.

Rothschild’s lawyers argued in court that the project was akin to Andy Warhol’s silkscreen print reproductions of Campbell’s soup cans and, as art, should be protected by the First Amendment.

“I am not creating or selling fake Birkin bags. I’ve made artworks that depict imaginary, fur-covered Birkin bags,” Rothschild wrote in a statement to his Instagram followers last year.

A nine-person jury ruled Wednesday that Rothchild’s NFTs are not protected speech and are subject to trademark law, which is more strict on use of logos, brand names and and other distinguishing symbols than artwork is subjected to.

The jury awarded Hermès $133,000 in total damages. Last year, Sotheby’s sold a Diamond Himalaya Birkin 30 for $440,000. Rothschild sold more than $1m worth of virtual Birkin bags, Hermès said.

The ruling, which cast doubt on NFTs’ status as art, could have vast impacts in the digital art space where prices have plummeted amid the so-called “crypto winter”. Last year Yuga Labs, the parent company of the Bored Ape Yacht Club NFTs, sued artist Ryder Ripps and accused him of ripping off the company’s monkey images to profit off copycat NFTs. Ripps defended his project as satire, and the case is still pending, though a related lawsuit was settled earlier this month.