(These) NFTs Are Not Art: Judge Sides With Fashion Giant Hermès in MetaBirkins Case

Luxury fashion house Hermes International won a US lawsuit against digital artist Mason Rothschild, with the jury ruling that his 100 “MetaBirkins” NFTs are not art.

But Rothschild and his legal team are already planning to appeal the decision, his publicist Kenneth Loo told Vogue Business.

On the third day of deliberation, the nine-person jury found Rothschild liable for trademark infringement, trademark dilution and cybsersquatting after hearing testimony from live witnesses including the defendant.

A verdict reached on Wednesday saw Hermes awarded $133,000 in total damages, and declared Rothschild’s NFTs do not count as protected speech under the First Amendment. 

The case marked one of the first intellectual-property trials over NFTs and raised questions about whether creation can be protected in the tokenized digital art world.

It was also the first to legally discuss the relationship between digital art and the reproduction of physical fashion, according to Vogue Business.

Commercial litigator Emily Poler said the jury must have concluded that Rothschild’s argument, which claimed the MetaBirkins NFTs represented artistic expression, was not credible. Instead, they saw Rothschild attempting to capitalize on the Hermes brand. 

“There is still room for artwork to be protected by the First Amendment, but this (according to the jury) isn’t it, she told Blockworks. “That’s not to say there aren’t other NFT projects out there that would be protected.”

In closing arguments on Feb. 6, Mason Rothschild’s lawyer said his client could have charged more for the MetaBirkins, per Inner City Press. More than $1.1 million in MetaBirkin NFTs were sold shortly after their launch in Dec. 2021. Hermes sent a cease and desist shortly after and sued Rothschild in January.

“It was an artistic experiment. He wanted to see what kind of value people would ascribe to these two-dimensional pictures,” the lawyer said.

“It is unlikely that people who would pay thousands of dollars on bags would be confused these #MetaBirkins were from Hermes. He has a Constitutional right to create his MetaBirkins art work, and to make money from, as long as he doesn’t mislead people.”

Rothschild slammed the verdict on Twitter, suggesting that Hermes does not care about art or artists, yet “feel they have the right to choose what art IS and who IS an artist.”

Blockworks has reached out for confirmation on their plans to appeal.

“What happened today was wrong. What happened today will continue to happen if we don’t continue to fight. This is far from over,” he said.

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