NFTs, intellectual property and the dispute between Hermes and Mason Rothschild

By Ana Cisneros | 01-Jan-2022

NFTs, or non-fungible tokens, are digital assets in the metaverse that have certain characteristics, the most important of which is their non-fungibility. These assets can be made up of various items, ranging from tweets to artworks.

NFTs use the same technology as cryptocurrencies, which are electronic assets with cryptographic encryption that guarantee ownership and ensure the integrity of transactions, and control the creation of additional units, i.e., prevent anyone from making copies. NFTs are also protected electronic assets, but they are not interchangeable or replaceable like cryptocurrencies, since the digital certificate of validity of NFTs is lost when they are altered.

NFTs, like cryptocurrencies, are acquired through the blockchain network. The advantage of blockchain, cryptocurrencies, and NFTs is that they eliminate intermediaries and provide speed to the purchase and sale of these digital assets.

By now, we have probably all heard or read about the case of the Metabirkins and the escalating reaction that Hermès has had in response to them.

Hermès, the French fashion house famous for selling handbags that cost half a million pesos, having a waiting list of years, and being so exclusive that they are highly prized (some even say that investing in a Birkin bag is better than investing in gold), has decided to confront the creator of the "Metabirkin," Mason Rothschild, for considering that the Metabirkins infringe on its intellectual property.

The Metabirkins are, as Rothschild calls them, reinterpretations in the metaverse of the well-known Birkin bag created by Hermès.

Initially, when Rothschild uploaded the first "Birkin" to the metaverse, a creation made in collaboration with the artist Eric Ramírez, he called it Babybirkin, a play on words referring to the smallest model of the iconic bag.

The token sold for the amount of $23,500 and was later resold for $42,000.

On this occasion, Hermès made no pronouncement regarding the NFT, despite it clearly referring to the French fashion house and its iconic bag. Apparently, Hermès did not want to generate publicity regarding the NFT, and considered that fair use might prevent it from taking legal action against Rothschild.

However, when Rothschild created the Metabirkin and uploaded it to the platform known as OpenSea, which describes itself as the first and largest NFT marketplace, Hermès finally decided to send what is known as a cease and desist letter for infringement of its intellectual property.

Rothschild's response came in the form of an open letter published on the social media platform Instagram, in which he referred to his freedom of expression, provided for in the first amendment to the US Constitution, which allows him to reinterpret and pay tribute without constituting an infringement.

It is well known that artists like Duchamp, Andy Warhol, and Jeff Koons have "paid tribute" and "reinterpreted" iconic works, such as the Mona Lisa, and even Rothschild in his defense cited the use of Campbell's soup cans in Warhol's works. And as they also argued at the time, it is clear that no one would think that the Mona Lisa is Duchamp's work or that Andy Warhol sold soup, but in this case, fashion houses are entering the Metaverse to commercialize their products and offer various experiences to their customers, and many of their creations in the Metaverse are carried out through collaborations with other artists, so the fact that an artist makes alterations to the Birkin bag could indeed generate confusion regarding the authorization that Hermès may have granted for the creation of the Metabirkins.

Hermès is no stranger to collaborations and tributes, as their iconic bag is named after the French actress and singer Jane Birkin, who at one point wanted to dissociate herself from Hermès due to alleged animal cruelty practices in the production of the bag.


Ana Cisneros
Litigation, Copyright
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