In the first-ever trial on non-fungible tokens (NFTs), a Manhattan court ruled that an artist who made and sold digital images of Birkin handbags covered in fur violated trademark rights.
The jury returned a verdict on Wednesday and awarded fashion giant Hermes $192000 in damages, rejecting Mr Rothschild’s argument that his MetaBirkin NFTs were works art commenting on the market for luxury goods and should be protected by laws governing free speech.
He began selling them around 2021.
“The commentary in Mason’s work was probably more difficult to discern because it was subtle,” Alfred Steiner, an intellectual property attorney and artist, said.
“It may have been lost on a pool of jury members or the general public.”
A lawyer representing Mr Rothschild said it was a “terrible day for artists and the First Amendment”.
A New York lawyer specializing in technology and intellectual property Emily Poler noted that “there is still room for artwork to be protected by the First Amendment.”
NFTs or non-fungible tokens are unique cryptographic tokens that exist on a blockchain and cannot be replicated.
Legal experts are following the case closely as it could influence future NFT cases which blur the line between art and consumer products.
“What happened today was wrong,” Rothschild said in a statement. “What happened today will continue to happen if we don’t continue to fight. This is far from over.”
The First Amendment protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.
Mr Rothschild produced a series of images of the famous bag calling them “MetaBirkins”. One was covered in shaggy green fur.
There was a version based on Van Gogh’s “Starry Night” painting, and an animation of a foetus growing inside a transparent Birkin handbag – a play on the brand’s smaller model of its bag known as the “baby Birkin”.
The artist claimed his works were in the same vein as Andy Warhol’s reproductions of Campbell soup cans.
Andy Warhol, Campbell’s Soup Cans, 1962
Warhol had made famously recreated the famous soup cans by Campbell, changing only the label on the front of each can to distinguish them by variety. He exhibited them in 1962.
But the jury decided they should be seen as consumer products and were therefore covered by trademark law.
