“Terrible day for artists and the First Amendment.” (not exactly)

MetaBirkins loses

What is a Birkin Bag?

I did this post because I saw that the lawsuit was being discussed as a First Amendment issue. ( Hermes International v. Rothschild, U.S. District Court for the Southern District of New York, No. 1:22-cv-00384.) Then I had to find out about the Birkin Bag. They cost a LOT of money. Here is one for $34,500.

Hermès Special Order (HSS) Birkin 25 Rose Lipstick and Anemone Chèvre Palladium Hardware-$ 34,500.00

Hermès has won a lawsuit against artist Mason Rothschild

French luxury brand Hermès¹ has won a lawsuit against artist Mason Rothschild who depicted Birkin bags in a non-fungible token (NFT) collection²—METABIRKINS. The artist argued that NFTs should be covered under the U.S. Constitution’s First Amendment but the jury disagreed.³

NFT versions of Birkin bags violated Trademark Rights.

A Manhattan federal jury has decided in favour of French fashion house Hermès in its case against an artist who used images of the company’s Birkin bags to create NFT artworks. It was decided that Mason Rothschild’s non-fungible token versions of the fashion house’s famous Birkin bags violated its trademark right.⁴

Hermès’ prized leather Birkin handbags typically sell for tens of thousands of dollars, and the company has sold over $1 billion worth of Birkins in the United States alone, including more than $100 million worth in the past ten years, according to court documents. But Mason Rothschild’s attorney, Rhett Millsaps, called the result a “terrible day for artists and the First Amendment.”

Trademark Claim: First Amendment "Fair Use" Defense May Work Better in Copyright Cases

Hermès did not bring its claims under copyright law but rather trademark law and introduced evidence at trial supporting its claims of likelihood of confusion, including survey evidence, marketing methods and trade channels. Additionally, Hermès introduced evidence showing that Rothschild's endeavor was not purely artistic but heavily commercialized as he encouraged others to market his MetaBirkins to drive up their value. And, although not currently selling NFTs in the marketplace, Hermès also offered evidence that it contemplates entering the virtual reality market with its own digital products, thus staking its trademark claim in the metaverse as well as the physical realm.⁵

1. Hermès.

2. "WTF Is an NFT, Anyway? And Should I Care?". (March 12, 2021).Wired.

3. Kevin Helms (Feb. 9, 2023.) French Luxury Brand Hermes Wins NFT Trademark Infringement Lawsuit. Bitcoin.com

4. Hermès Wins Case Against NFT Artist. Arts and Collections. The case is Hermes International v. Rothschild, U.S. District Court for the Southern District of New York, No. 1:22-cv-00384.

5. Thomas W. Brooke | Danielle N. Garno (February 9, 2023).Jury Finds Creator of MetaBirkins Liable Under Trademark Law. Holland & Knight Alert.