NFT copyright wars: Hermès Birkin vs MetaBirkins
The luxury fashion brand Hermès is suing an NFT creator who has been selling digital ‘MetaBirkins’ bags as NFTs.
According to the complain, filed in the United States District Court, Southern District of New York, Hermès is after Mason Rothschild, because he seeks to make his fortune by swapping out Hermès’ “real life” rights for “virtual rights”. Rothschild is quoted saying that he is trying to “create the same kind of illusion that [the Birkin] has in real life as a digital commodity” and that he has openly acknowledged that he elected to sell his NFTs as METABIRKINS because a BIRKIN handbag is a highly valuable asset in the physical world.
Hermès calls Rothschild ‘a digital speculator who is seeking to get rich quick by appropriating the brand METABIRKINS for use in creating, marketing, selling, and facilitating the exchange of digital assets known as non-fungible tokens (“NFTs”) and wants the court to require Rothschild to cease his activities, surrender the MetaBirkins.com domain name to Hermès, and pay damages including his profits from selling the digital assets.
According to the METABIRKINS Website, “Rothschild began working on MetaBirkins shortly after the success of Baby Birkin…In response to the community demand, Rothschild developed a new series…”: the METABIRKINS NFTs. A screenshot of the METABIRKINS Website is attached hereto as Exhibit P. 53. The Baby Birkin was a single NFT consisting of an animation of Hermès’ BIRKIN handbag. It featured a 40-week-old fetus on top of a transparent version of a BIRKIN bag.
Rothschild’s digital dupes of the Birkin, which depict fur-covered bags shaped like the iconic totes, first sold online in December for $42,000. The bags retail for over $10,000 in the physical world and are particularly coveted on the resale market due to their limited production.
Rothschild is calling the MetaBirkins “art” and claims that as an artist his activities are protected by the First Amendment guaranteeing freedom of speech “just as it gave Andy Warhol the right to make and sell art depicting Campbell’s soup cans”.
“I am not creating or selling fake Birkin bags. I’ve made artworks that depict imaginary, fur-covered Birkin bags,” Rothschild said in a public statement on his Instagram account responding to Hermès’ complaint. “I won’t be intimidated,” he added.
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