NFTs
A judge bans Mason Rothschild from displaying his MetaBirkin NFTs
A US federal judge has banned digital artist Mason Rothschild from displaying a series of digital artworks in the form of non-fungible tokens at a museum in Sweden. The NFTs feature 3D representations of Hermès’ famous fur-covered Birkin bags.
Rothschild was involved in a legal battle with the luxury house after Hermès sued him on NFTs in 2022. A unanimous jury considered him responsible for trademark infringement and cyber-speculation, ordering it to pay the fashion giant $133,000 in damages following a nine-day trial in February 2023. The court issued a permanent injunctionpreventing the artist from further infringing the Hermès trademark with his NFTs.
U.S. District Court Judge Jed Rakoff later criticized Rothschild in an order as an “outspoken conman” who tried to cover up his fraud by “posing as an artist to mint his “MetaBirkin” tokens.” In response to the verdict, Rothschild insisted in a statement that “the First Amendment gives me the right to make and sell art that depicts Birkin bags.”
Earlier this year in January, the artist asked the court for clarification on whether the injunction would prevent him from giving the Spritmuseum in Stockholm permission to display the NFTs in an upcoming exhibition about Andy Warhol and corporate art.
Hermès filed a response seeking to block it in February. The court then heard from two witnesses: Mia Sundberg, a representative of the museum, and Blake Gopnik, a critic who helped organize the planned exhibition. (Gopnik previously wrote a Washington Post opinion article titled “A Misguided Jury Failed to See Mason Rothschild’s MetaBirkins Art.”)
Court documents show that the museum planned to note the case against Rothschild in a descriptive text accompanying the MetaBirkins if permission to display them was granted.
The judge ultimately agreed with Hermès’ legal arguments that Rothschild did not provide details about the permissions it would grant the museum, including whether the exhibition would include merchandising or how it planned to promote the show.
“We do not know, for example, whether the license will cover the sale of products with MetaBirkins in the museum store or elsewhere,” argued the fashion giant. As such, the court determined that there is a risk that the exhibit would circumvent the injunction.
“Without a clear and concrete statement that, as the jury unanimously decided, [Rothschild] designed the MetaBirkins NFTs to deceive the public into believing that Hermès was somehow behind the images, there is little reason to expect those who visit the exhibition to understand that [his] the creation and distribution of MetaBirkins NFTs was a fraudulent enterprise in which Hermès had no role,” the judge said.
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