The legal battle between Hermès and Mason Rothschild has sparked controversy and debate in recent weeks. Hermès, the renowned French fashion house, took legal action against Rothschild, an American artist, for creating NFTs (non-fungible tokens) based on their famous “Birkin” handbag and transforming it into “Metabirkins.” The New York courts ruled in favor of Hermès, citing the protection of trademark rights, which has raised concerns about artistic freedom of expression.
Rothschild’s main argument was based on the First Amendment of the United States Constitution, which protects “free speech” and artistic expression. He argued that his creation of the Metabirkins was a form of artistic expression and therefore protected by the First Amendment. However, the court’s decision was seen as a blow to artists and the First Amendment by Rothschild’s lawyer.
To understand the situation better, it is essential to define what an NFT is. NFT stands for “non-fungible token,” which means it is a unique and non-interchangeable token. It is a digital file registered on the blockchain, often based on a digitized artwork.
However, it is crucial to make two important distinctions:
1. The digital file on which the NFT is based does not necessarily have to be an artwork.
2. The NFT itself is not an artwork; it functions more like a certificate of authenticity attached to an artwork.
Therefore, NFTs themselves are not artworks but rather codes associated with potentially artistic digital files.
Creating an NFT can potentially infringe copyright. Copyright infringement refers to the unauthorized use of intellectual property, such as reproducing a trademark, copyrighted work, or design.
The Birkin handbag is protected by various intellectual property rights. Its design is protected by copyright, and it has been registered as a design and model. Additionally, the terms “Hermès” and “Birkin” are registered trademarks.
Reproduction can take various forms, such as replicating the Birkin handbag or creating an image of it. Creating a code associated with a digital file reproducing Birkin handbags potentially constitutes copyright infringement. Furthermore, the use of the name “Birkin” in the NFTs’ denomination, “Metabirkin,” is an unauthorized use of intellectual property rights.
Additionally, the purpose of Rothschild’s reproduction was commercial. While some unauthorized reproductions of intellectual property may be tolerated for educational purposes under the “fair use” doctrine in U.S. law, reproducing a trademark is illicit and constitutes infringement when it creates confusion with the trademark holder’s products or services.
While there are artistic works that mention trademarks without causing confusion, the court determined that the Metabirkins were not sold as a societal critique but rather as a capitalization on the brand name “Birkin.” This use deprived Hermès of potential business opportunities in the NFT market, making it an illegitimate use.
In conclusion, the Hermès vs Rothschild case brings attention to the complex intersection between artistic expression, intellectual property rights, and the digital world. Artists must balance their creative freedom with respecting and abiding by intellectual property laws. While NFTs have opened up new possibilities and challenges in the art world, they do not exempt artists from copyright infringement. Finding the right balance between creators’ rights and rights holders’ interests remains a challenging task in the ever-evolving landscape of technology and art.
Useful links:
1. Understanding Fair Use in the US
2. Introduction to Intellectual Property
