Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 24, Issue 21
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Will you add MetaBirkin to your holiday wish list?
By Kristyn Webb
Happy “Black Friday”—the biggest retail shopping day of the year. Soon, you may be able to add MetaBirkin to your holiday wish list.
In 2021, artist Mason Rothschild created a series of non-fungible tokens (NFTs) that depict fuzzy handbags called “MetaBirkins” which he offered for sale on the NFT marketplace OpenSea. In 2022, the French luxury brand Hermès, known for its “Birkin” handbags, filed a lawsuit for trademark infringement and other claims against Rothschild. For comparison, Birkin bags range in price anywhere from around $20,000 USD to $2 million USD. One of Rothschild’s MetaBirkin NFTs sold for $42,000 USD.
After receiving a letter from Hermès, OpenSea removed the NFTs from the marketplace, but Rothschild relisted the NFTs on another marketplace called Rarible. Soon after, however, that listing also was removed. Rothschild publicly responded to the lawsuit on Instagram and stated that his work is protected by the First Amendment as free speech. He further stated that Hermès should be using its role as a “fashion powerhouse” to help young and aspiring artists. Rothschild also shamed OpenSea for failing to “standby the artists who support” the platform.
The case went to trial, where the jury found in favor of Hermès and awarded $133,000 USD in damages. Now on appeal, Rothschild argues that he is an artist and his MetaBirkins are not merely commercial goods, but art worthy of First Amendment protection—in the same way that Andy Warhol made art of Campell’s Soup Cans. During oral arguments, the appellate panel appeared somewhat divided on the issue. One judge flat out stated that he believed the MetaBirkins were an artistic expression, while other comments and questions by the panel queried whether Rothschild was simply trying to cash in on the Birkin brand and the NFT goldrush, and whether NFTs can really be “art” if they cannot be mounted on a wall. One judge commented, “For the life of me, I cannot understand why [people] are buying them, but apparently they are.”
We will have to wait and see whether the appellate court finds grounds to overturn the jury verdict. In the meantime, if Birkin bags and MetaBirkins are out of your price range, check out our Finny NFTs—which are much more reasonably priced. Any proceeds support The Ocean Conservancy.
Kristyn Webb is the Group Leader of Fishman Stewart’s Copyright Practice Group, and holds a Master’s Degree in Copyright Law from King’s College London.
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