Hermès Bags a Win against Artist

BY STEPHEN J. GOLDBERG, ESQ.

The Hermès Birkin handbag is the stuff of legend. Named for actress Jane Birkin, each bag is hand-tooled in the finest leather or crocodile. The bags are highly sought out by the nouveau riche. Customers for new releases are placed on a waiting list and there is a brisk online resale market with some vintage bags priced in six figures. Hermès is known for vigorous defense of its trademark, but it was still somewhat of a surprise when the fashion house sued a little-known digital artist, Mason Rothschild, for trademark infringement for selling what he calls “MetaBirkins” as NFTs.

NFTs, or non-fungible tokens, are entries on blockchain ledgers to indicate ownership of the first digital file of an artwork. In 2021, Rothschild created a digital series of 100 MetaBirkins adorned in various multicolored faux-fur combinations priced at $450 each. The artist registered the “MetaBirkins” as a trademark. Hermès didn’t get the joke and sued Rothschild in New York federal court, charging him with infringement, trademark dilution and cyber-squatting (registering a mark that overlaps with a pre-existing one).

What made the case so important was that it was one of the first to determine whether NFTs are art protected by the First Amendment or whether they are simply commercial products subject to trademark law. Rothschild said that he was spoofing “consumerism.” He has a point—just how a well-heeled buyer of a Birkin would be confused by a fictitious “MetaBirkin” is hard to imagine.

Hermès’ complaint stated: “Although a digital image connected to an NFT may reflect some artistic creativity… the title of “artist” does not confer a license to use an equivalent to the famous Birkin trademark in a manner calculated to mislead consumers and undermine the ability of that mark to identify Hermès as the unique source of goods sold under the Birkin mark.”

In the February trial, the jury found Rothschild liable for trademark infringement and dilution, awarding Hermès $110,000 plus an additional $23,000 for cyber-squatting. More importantly, the jury concluded that NFTs are not art, and therefore do not have First Amendment protection. Rothschild’s lawyers had argued emphatically that NFTs should be considered art.

In March, 2021, this column covered the spectacular sale by Beeple, a well-established digital artist, of his NFT Everydays: The First 5,000 Days for $69 million in cryptocurrency at Christie’s. In that column I concluded that NFTs are not art—they are entries on the blockchain ledgers—even though the underlying digital file can be considered art. NFTs convey no intellectual property rights to the buyer such as copyright or trademark. In addition, as we have seen in the Hermès case, NFTS may expose the digital artist to trademark infringement.

The buyer of The First 5,000 Days was a crypto “whale” who goes by the name of Metakovan—a promoter of Ethereum who went on to sell fractional shares in the Beeple NFT to buyers who paid in that currency. The Beeple sale turbocharged NFT sales of such mundane items as NFT photos of Kate Moss sleeping, which went for six figures each. NFTs had the misfortune of being tethered to crypto, so in the wake of last year’s crypto crash the volume of NFT sales declined 97% according to The New York Times

The judge in the Hermès case excluded from evidence an expert report prepared by Times art critic Blake Gopnik that compared Rothschild’s works to the works of Andy Warhol incorporating commercial imagery, such as paintings of Campbell’s soup cans. Gopnik wrote an op-ed in the Times, he called Rothschild’s artwork a campy riff on Birkin bags; he concluded that, as a parody, the works should be protected by the First Amendment’s free speech clause. While Gopnik is correct about Warhol (whose work pre-dated the NFT era), he completely ignored the issue of whether an NFT is art. Gopnik’s expert opinion might not have mattered to the jury anyway.

The jury made a decision that NFTs are commercial products and thus subject to trademark infringement. Rothschild says he will appeal the verdict. The appellate ruling will be closely watched. The trial verdict has dealt a major blow to the already battered NFT market.

Illustration by Zak Smith

I know it doesn’t sound quite right, especially now, but: I need an object. A specific one.

I want to read Oliver Bernard’s translation of one of the poems from Arthur Rimbaud’s Illuminations and the virtual world is being no help at all. Arthur Rimbaud is not an obscure poet (no more obscure than any other poet in 2023) and Bernard’s translation was from the standard Penguin Edition available from around 1962 until at least when I was a teenager. There is no help from the website Poem Hunter nor from poetry.com, there are no PDFs available, there are no recitations on YouTube or any well-meaning public-domain library, no guarantee that various sketchy services promising downloads will come through with my poem. It’s 20 lines, max. And nowhere.

I am going to have to shower, get in an Uber, go downtown, enter a code in a keypad, walk down a gray hall into a storage space, enter the same code again, press a button, get in an elevator, go up a floor, take a left, pull out a key, (“I alone hold the key to this savage parade”*) move furniture, peel back layers, get a knife, cut open box after box of physical books that not weeks ago I was cursing myself for owning, sort through them all, all before 5 p.m., just to read a goddamn poem.

This is not the present I was promised. We are supposed to be in an age of dematerialization. That I can only track it down by shifting all this time, steel and gasoline is appalling.

My point is: Objects are strangely persistent.

Art and poetry are frequently lumped together: the old joke “How do you get an art major off your porch?—Pay for the pizza,” is as easily told with a poet. Art and poetry share the same qualities of dreamy, worthy uselessness in the public mind. Yet poetry (along with ballet, opera and dramatic theater) is massively out of fashion while art just keeps being there: There is an art market, you can meet attractive women at art openings, wealthy people buy it, sell it, invest in it, you can go hang out near art on a date, people can and will take selfies with it. Art is a going concern, viable under capitalism. If you want poetry, on the other hand, you need to appeal to civic institutions, or the generosity of private eccentrics.

Why does the obtuse, anachronistic niche humanistic endeavor we like seem to persist when so many of the other obtuse, anachronistic niche humanistic endeavors have fallen into the state of gelded unpopularity we call irrelevance? I would propose a key element is art’s objectness. We still want things around.

I know a woman who has dead animals everywhere—in her home. Its conceptually bankrupt, this apartment. I know what a crow looks like, you know what a crow looks like, all the ideas that a crow is supposed to represent are available to me sans actual crow in the kitchen but I like walking around the kitchen when there’s a crow there and another crow and a rib cage. It’s just nice to have objects. They face each other, they get in front of or behind each other, they look at you from across the room, they intrude, unrequested into your field of consideration like hunger, lust, loneliness and everything else that keeps the world interesting.

Ever help anyone move? They love objects. They have the plastic letter “S” from the name of the diner that used to be across from their school, they have a very specific Van Halen shirt with baseball sleeves, they have far too many teacups—and none of them that good. Have you ever tried to separate anyone from even an awful painting of their dog? Can’t be done. It is a thing. They may delete and will likely forget about a cute meme you make of their dog wearing sunglasses telling a joke or inviting everyone to their birthday barbecue, but they will never get rid of a painting of their dog. Can’t be done.

Maybe it’s the inconvenience: while all the dog memes ever fit in a folder, the dog painting forces you, on moving day, to decide whether to take it or that box of forks. Objects make demands—even broken and dismissed, they need to be left somewhere—a trash can or landfill. In an attention economy, actually existing makes you that much harder to forget.

*According to the AS Kline translation, easy to find and not the one I want.