Hermès filed a lawsuit against Mason Rothschild. for his MetaBirkin NFTs. They say that it infringes on their trademark. He says its art. They’re both right. Technically.
I keep covering these intellectual property cases because they fascinate me. They are not cut and dry. In this example, Rothschild has created an NFT, the MetaBirkin, which has fantasy deviations from the real life product- like a fetus inside the baby Birkin, kind of deviations. He says he was inspired by culture the same way Andy Warhol was. Technically, it is just art. It is just a representation of the item. But, as Hermes point out, he is using the name and profiting off it. These are not free stickers he is posting up throughout the metaverse. This is a product being sold for economic gain. Interest in the product piggy backs on the name and image associated with the Birkin bag. It infringes on the Hermès brand.
When we see Andy Warhol’s Campbell soup can array, we know it’s art. Or at least we do now. It is something that you can put on your wall. In no way will someone confuse it with the actual soup can. It doesn’t have the same properties. That art deco print is not really the tomato soup I dislike so much.
On the other hand, we are still trying to figure out what an NFT really is. And the metaverse. And what even is web3? As companies continue to design products for the metaverse, how do we define what they are? Are these MetaBirkin NFTs art? If so, then what makes them different from meta fashion that just sits in a virtual closet? I don’t know.
This case is not just about Hermès’s claims. It could potentially be a landmark decision that shapes how other companies protect their interests in the metaverse, or even if they can. Or it may put boundaries around what can be considered art in the virtual world.
See these sources to read more:
Dafoe, T. (January 26, 2023). Hermès Is Suing a Digital Artist for Selling Unauthorized Birkin Bag NFTs in the Metaverse for as Much as Six Figures. Artnet News. https://news.artnet.com/art-world/hermes-metabirkins-2063954
Lowenkron, H. (January 31, 2023). Is It Metaverse Art or Birkin Ripoff? A US Jury Will Decide. Bloomberg. https://www.bloomberg.com/news/articles/2023-01-31/is-it-metaverse-art-or-a-birkin-ripoff-a-us-jury-will-decide
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