Art, Law, and Commerce in the Metaverse: On Three New Stories of NFTs

Types : Bylined Articles

IN FEBRUARY, a Manhattan jury found that the First Amendment did not shield artist Mason Rothschild from liability for infringing Hermès’s trademark with his “MetaBirkin” NFTs. It was a disappointing verdict for those of us intrigued by the possibilities of so-called “crypto art,” art associated with virtual non-fungible tokens created and recorded on an online blockchain network. NFTs emerged on the scene in 2014 with Kevin McCoy’s minimalist Quantum, a digital image resembling a kind of factureless Kenneth Noland target painting in pulsating electric fuchsias and greens. It was not until 2021, however, with the shocking $69 million sale of Beeple’s maximalist Everydays—a collage of over 5,000 digital images of everything from presidents to Pikachu—that the new technology entered mainstream consciousness.

Rothschild’s MetaBirkins—images of fur-covered luxury handbags reminiscent of Hermès’s iconic “Birkin” bag—have a blindingly obvious precedent in Andy Warhol’s cans of Campbell’s Soup and other works of pop art that appropriate high-visibility logos and brands. Birkins cost upwards of $10,000 and have lived in the public imagination as exemplars of commodity fetishism since they were introduced in 1984. In targeting Hermès in particular, Rothschild is in exalted artistic company. Years before the first Birkin was made, Weekend—Jean-Luc Godard’s 1967 film about the nihilistic consumerism of the bourgeoisie—featured a scene in which the female lead emerges from a violent car crash screaming, “My Hermès bag!” while ignoring the flaming corpse of a man who also perished in the wreckage.

None of this could save Rothschild in court. Hermès’s attorneys shrewdly demanded a jury trial, then screened out potential jurors with any knowledge of art history. One juror who made the cut reportedly owned multiple Birkin bags herself. Perhaps unsurprisingly, this group had a hard time seeing Rothschild’s MetaBirkins—one of which sold for $45,100—as anything other than a rip-off. While the jury verdict set no formal precedent, it resounded through the worlds of fashion and art as the first major case involving NFTs to go to trial.