NFT artist Mason Rothschild took to social media where he let it be known he’s received a cease and desist for his MetaBirkins virtual art from Hermès, the French luxury whose bags inspired the art. Debuted at Art Basel in December 2021, Rothschild sold 100 versions of the NFT on OpenSea where they’ve since been removed. At the time of removal, the bags boasted a trading value of $1.1 million.
In a letter to Hermès, Rothschild wrote, “So I got your cease & desist letter. While I am sorry you were insulted by my art, as an artist, I will not apologize for creating it.” Stating the first amendment provides him protection from copyright claims, he added “Selling my MetaBirkins as NFTs is akin to selling them as physical art prints. It should not be my job to educate you on advancements in the world and the culture of art. Art is art.”
In a second letter, Rothschild also chided OpenSea for removing the NFTs from its platform. He also wrote a letter to “The Community” thanking them for their support, however, many of the responses to his Tweet derided him for choosing to push a project potentially subject to lawsuit.
While Hermès hasn’t responded to Rothschild’s open letter, it pushed back on initial reporting stating Rothschild had a company co-sign to create the NFTs. In a statement provided to the Financial Times, the company commented, “Hermès did not authorize nor consent to the commercialization or creation of our Birkin bag by Mason Rothschild in the metaverse. These NFTs infringe upon the intellectual property and trademark rights of Hermès and are an example of fake Hermès products in the metaverse.”
Noting that Hermès’s power to protect its brand in the virtual world isn’t settled law, The Fashion Law commented, While Hermès maintains robust rights in the Birkin bag name and configuration for use on leather goods and other related products, there is an argument to be made that such rights do not necessarily apply to virtual handbags or the code that is tied to an image of a handbag.”
As usual when it comes to infringement, it all comes down to public perception. “In order to make a case for infringement, it would need to show that consumers are likely to be confused about the source of the MetaBirkins and/or its affiliation, connection or association with the NFTs,” noted The Fashion Law.What do you think?