<\/p>\n
Artist Mason Rothschild thought he was sitting on a \u201cgoldmine\u201d when he began creating digital versions of the iconic Herm\u00e8s Birkin handbag and selling these as NFTs. Among them was an animated piece called \u201cBaby Birkin<\/a>\u201d that depicted a human fetus floating inside and which was ultimately acquired by a buyer for $47,000 at the height of the NFT frenzy in May 2021.<\/p>\n Unsurprisingly, Herm\u00e8s loved the art project less, and the powerhouse luxury brand just won a copyright infringement case against Rothschild that could have widespread ramifications for NFT creators whose inspiration is real-world goods that are protected by intellectual property laws.<\/p>\n Though Rothschild\u2019s attorneys argued that NFTs are works of art shielded by the First Amendment, much like Andy Warhol\u2019s silk-screen prints of Campbell\u2019s soup cans, in a Manhattan courtroom a nine-person jury awarded Herm\u00e8s $133,000 in damages after determining that NFTs are more akin to consumer products subject to strict trademark laws that protect brands from copycats.<\/p>\n Herm\u00e8s argued during the one-week trial that NFTs confused buyers, some of whom believed that the goods were affiliated with the brand, it claimed. Rothschild\u2019s camp argued that confusion was minimal.<\/p>\n Herm\u00e8s also argued that Rothschild\u2019s \u201cMetaBirkins\u201d project was muddying waters that Herm\u00e8s itself plans to enter eventually and for which it is actively developing plans. \u201cIf we want to bring our bag into this virtual world, there will always be a reference to the MetaBirkins,\u201d Herm\u00e8s\u2019 general counsel Nicolas Martin reportedly told the jury during testimony.<\/p>\n Herm\u00e8s attorneys also, per Bloomberg Law<\/a>, pointed to text messages that they said show Rothschild wanting to \u201ccreate the same exclusivity and demand for the famous handbag.\u201d\u00a0\u201cWe\u2019re sitting on a goldmine,\u201d Rothschild wrote in one text.<\/p>\n Physical Birkin bags range in price from $12,000 to roughly $450,000 and sometimes even more. (Sotheby\u2019s sold one last year for $2 million<\/a>; the bag was crafted from rose gold inlaid with 2,712 diamonds.)<\/p>\n According to the New York Times, Birkin bags require a minimum of 18 hours<\/a> to make by hand, with an estimated one million handbags<\/a> in the market, even as the bags continue to be perceived as among the rarest in the world.<\/p>\n Rothschild had apparently planned to create 1,000 MetaBirkins but had released just 100. As notes Bloomberg Law, Rothschild first sold the NFTs for around $450 each but their resale soared to tens of thousands of dollars, as with \u201cBaby Birkin.\u201d (Others of Rothschild\u2019s creations include a digital Birkin bag with shaggy green fur.)<\/p>\n As of January 2022, when Herm\u00e8s first sent Rothschild a cease-and-desist letter, Rothschild claimed that MetaBirkins had a trade volume of $1.1 million<\/a>.<\/p>\n Herm\u00e8s is accustomed to inspiring artists, though most of them can\u2019t scale their work as easily as Rothschild. For example, there is currently a Kelly-green sculpture<\/a> of a Birkin bag for sale at the 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.<\/p>\n No doubt the work itself matters, too. In response to Warhol\u2019s 1962 series of paintings of Campbell Soup cans, the product marketing manager for Campbell Soup Company didn\u2019t threaten him; instead, he sent a letter<\/a> to Warhol, expressing the company\u2019s admiration.<\/p>\n<\/p><\/div>\n