Artist Mason Rothschild thought he was sitting on a “gold mine” when he started creating digital versions of the iconic Hermès Birkin bag and selling them as NFTs. Among them was an animated piece called “baby birkin” which showed a human fetus floating inside and was eventually snapped up by a buyer for $47,000 at the height of the NFT frenzy in May 2021.
Unsurprisingly, Hermès loved the art project less, and the powerhouse luxury brand has just won a copyright infringement case against Rothschild that could have widespread ramifications for NFT creators whose works are inspired by goods. from the real world that are protected by copyright laws.
Although Rothschild’s lawyers argued that NFTs are First Amendment-protected works of art, just like Andy Warhol’s silkscreens of Campbell’s soup cans, in Manhattan earlier today, a nine-person jury awarded Hermès $133,000 in damages after determining that NFTs are more similar to consumer products subject to strict trademark laws that protect brands from imitators.
Physical Birkin bags range in price from $12,000 to about $450,000 and sometimes even higher. (Sotheby’s sold one last year for $2 million; the bag was made of rose gold encrusted with 2712 diamonds). Meanwhile, as you note bloomberg law, Rothschild first sold the NFTs for around $450 each, but their resale skyrocketed into the tens of thousands of dollars, such as with “Baby Birkin.” (Other of Rothschild’s creations include a digital Birkin bag with fuzzy green fur.)
Hermès argued through an expert witness that the NFTs misled shoppers, some of whom believed the products were affiliated with the brand, it claimed. The Rothschild camp argued that the confusion was minimal.
Hermès also argued that Rothschild’s “MetaBirkins” project was muddying the waters that Hermès itself plans to eventually enter and is actively developing plans for. “If we want to bring our bag into this virtual world, there will always be a reference to the MetaBirkins,” Hermès general counsel Nicolas Martin told the jury during testimony.
Hermès’ lawyers also, according to Bloomberg Law, flagged text messages that they said showed Rothschild wanting to “create the same exclusivity and demand for the famous bag.” “We are sitting on a gold mine,” Rothschild wrote in one text.
According to the New York Times, Birkin bags require a minimum of 18 hours to make by hand, with an estimate a million bags on the market, even as the bags continue to be perceived as some of the rarest in the world.
Rothschild had apparently planned to create 1,000 MetaBirkins, though he had only released 100.
Hermès is used to inspiring artists, though most of them can’t scale their work as easily as Rothschild. In fact, there is currently a Kelly-green sculpture of a Birkin bag for sale at high-end consignment site 1st Dibs. Cast in resin and made in 2015, a Brooklyn gallery is asking $6,500 for the piece and says others like it are available in pink, white, gold and silver.
