The Web3 and the NFT market may not be the far west fantasy. In the United States, an artist was sentenced by a New York jury to pay $133,000 (€121,000) in damages to the Hermès company for having sold NFTs of bags from the French luxury brand without authorization. This decision was expected, as it sets a precedent for intellectual property in the world of virtual works.
In 2021, the American Mason Rothschild, founder of a creation studio specializing in Web3, launched the NFT Baby Birkin with the help of an artist. The success is considerable since this image of a Hermès Birkin bag with a fetus inside sells for a whopping $23,500. On the strength of this success, the two friends are setting the stage again with the project MetaBirkins, a collection of 100 NFT of this mythical Birkin bag available in a wide variety of colors. According to the documents produced in court by Hermès, the collection would have brought in more than a million dollars to its creators. Some of these works are still available for resale on a specialized platform at prices varying between $5,000 and $165,000. Problem, Hermès never provided authorization.
A “great day for big brands”
Not seeing the tribute evoked by the artist, the luxury brand then retaliated in 2022, demanding the end of the project, the recovery of the domain name and financial compensation. Mason Rothschild, real name Sonny Estival, was found guilty of three counts: counterfeiting, brand dilution and cybersquatting. Hermès had indicated at the time that the Rothschild collection is “likely to cause confusion and misinterpretations in the minds of buyers”. Following the verdict, a spokesperson added that the luxury house has “acted to protect consumers and the integrity of its brand”.
Not without irony, one of the artist’s lawyers indicated that it was a “nice day for big brands [mais] terrible for artists and the first amendment”. The creator of MetaBirkins had indeed invoked the freedom of expression defined by the first amendment of the constitution of the United States to justify its creation and its good right to market it. Also mentioned, Andy Warhol’s serigraphy devoted to the reproduction of Campbell’s tin cans, the artist having at the time not requested any authorization from Campbell. Arguments not retained by the court which considered that the collection of virtual bags is not a work of art, but counterfeit.