NFTs draw blurry lines between art and trademark infringement

The Future. Hermès recently sued an NFT project that is aping its famous Birkin bags for profit. The defendant, artist Mason Rothschild, claims it’s nothing more than an art project remixing a brand’s cultural touchstone. Both parties have a stake in protecting the legitimacy and scarcity of their products (or artwork), and the result of the case may shape the future of NFTs. We’re sure Nike and StockX are watching closely.

Will the real Birkin please stand up…
Determining the difference between remixing and straight copying in the world of NFTs could have major repercussions.

• Input reports that fashion brand Hermès sued artist Mason Rothschild over his NFT collection called “MetaBirkins NFTs.”
• The digital MetaBirkins look very much like a typical Birkin bag just covered in fur.
• Hermès alleges that both the design and the name infringe upon the company’s copyright and purposely misled customers to juice up sales.
• Meanwhile, Rothschild claims that MetaBirkins NFTs are nothing more than an art project and aren’t trademarked… which makes them protected under the First Amendment.
• Rothschild also makes it clear that MetaBirkins have nothing to do with Hermès… but how many people are actually reading the fine print?

So, who’s right here? That’s the potentially billion-dollar question — and there’s legal precedent for both sides. At the heart of the conflict is “what is an NFT — a product to be sold or a piece of artwork?” As anyone dabbling in Web3 knows, it’s both. So, the delineation may come down to the intent of Rothschild — a conclusion that may be hard to discern.