MetaBirkins: The Landmark Digital Art Case On Our Culture's Commerce That Still Isn't Clear For Future Art Critics

When the nine-member jury returned its verdict in favor of Hermès in early February, a chilling wave of disappointment, frustration, and confusion spread throughout the art landscape on whether the jury actually understood the case before them as it concerned the underlying technology that has empowered this new era of digital art. 

NFTs, or non-fungible tokens, have unfortunately been both an innovative stepping stone, as well as the originating source of confusion in what is actually happening in the digital art space. 

Even The New York Times walked away from February’s verdict with a distorted view of what this case represents, along with a factually inaccurate news headline that still lives online – “Hermès Wins MetaBirkins Lawsuit; Jurors Not Convinced NFTs Are Art.”

And that right there lies the problem.

The outcome of the Hermès International v. Rothschild decision had nothing to do with jurors not believing NFTs to be art – it was about whether a particular work under these specific factual circumstances that uses an already established trademark, is considered a work of “artistic expression” that warranted First Amendment protection?

And the jury concluded that under the circumstances presented to them, MetaBirkins was not a work of “artistic expression” that should be afforded First Amendment protection. 

Since November 2021, artist Mason Rothschild (fka Sonny Estival) created and sold 100 digital collectibles that depicted a digital Hermès Birkin bag covered in faux fur and patterns, polka dots, and widely recognized artworks like the Mona Lisa and Van Gogh’s Starry Nights.

He also registered and used the domain name www.metabirkin.com and the social media handles @metabirkins to promote the sale of his “MetaBirkin” NFTs. 

These digital Birkin bags paid homage to French fashion house, Hermès International (“Hermès”), whose origin dates back to as early as 1837. The world-famous luxury designer is best known for its production of high-quality, coveted handbags known as BIRKIN bags, with the first Birkin bag created in 1984 and officially sold in the U.S. in 1986.

Unless an individual has a relationship with a Hermès sales representative, established a purchasing history with the fashion house, and/or demonstrated their extensive knowledge of the brand over time – these bags were notoriously expensive and difficult to obtain. 

By January 2022, Rothschild had sold over $1 million in “MetaBirkins” NFTs, who was quickly met with a lawsuit from Hermès in the Southern District of New York that heavily focused on allegations of trademark infringement, which it says caused “actual confusion” among consumers, sophisticated commentators, and even intellectual property attorneys. 

Rothschild, on the other hand, argued that his MetaBirkins were protected under the First Amendment as a form of satire on the luxury fashion industry and its animal cruelty.

The jury’s verdict, which awarded Hermès with $133,000 USD in damages, also leaves one question answered, while simultaneously, leaving the issue at bar extremely vulnerable to judicial abuse and miscarriage of justice when it comes to future art critics being qualified under Daubert as subject-matter experts on digital art projects like MetaBirkins. 

Under Daubert, district courts are considered gatekeepers, charged with “excluding unreliable expert testimony and junk science from the courtroom,” which helps to ensure the reliability and relevance of expert testimony. 

Under Federal Rule of Evidence 702, a witness “qualifies as an expert” may offer opinion testimony if – (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”

While there are some that believe that the court’s exclusion of Rothschild’s art expert, Dr. Blake Gopnik, may be a “red herring,” there is merit here in characterizing this as a logical fallacy, as the issue presented here will undeniably impact future litigation where testimony from art critics is sought out.

Gopnik, an American art critic who previously spent a decade as chief art critic of The Washington Post, is best known for authoring Warhol, a biography of Andy Warhol. 

Rothschild, by and through counsel, wanted to offer Dr. Gopnik’s opinion that the entire MetaBirkins projects, including, but not limited to the NFTs and visual images attached to it, should be analyzed holistically as “business art” that would fall under the protection of the First Amendment – similar to the “business art” that Warhol championed through his iconic 1961-1962 series of Campbell's Soup Cans. 

In other words, Dr. Gopnik would have opined that there was more here than digital images of faux fur handbags – and that First Amendment protection should extend to Rothschild’s entire business of promoting that digital image, which included the utilization of the domain names, social media handles, and accompanying hashtags. 

While Dr. Gopnik conceded to the court that there was “no agreed upon methodology among art historians” to resolve these types of disputes as to whether a particular item is considered “art,” which both Hermes and the court agreed wouldn’t really add anything significant to the case at bar.

For this reason, the court, moments before jury selection, removed that opportunity from both Dr. Gopnik and Rothschild for a number of reasons – primarily, because it believed that Dr. Gopnik’s testimony wouldn’t provide any reliable data or supporting methodology to support his opinions that wasn’t already known by the general public. 

On February 24, Dr. Gopnik published an Op-Ed in The Washington Post that argued a major failure by a “misguided jury” in seeing the “art” in Rothschild’s MetaBirkins project. 

He started off by asking the reader to agree on a few facts that he believes we as a society have already established as common practice – that artists make pictures of things, and that this “common practice” equally applies to Rothschild and the work he is fighting to protect. 

“...things that are important in their culture: Christian saints, or urban life, or maybe cans of condensed soup. That these artists – or more often their dealers, collectors or fans – title those pictures after the important things they show: ‘Campbell’s Soup.’ And then such artists very often do their very best to earn as much money as they can from the pictures they’ve made,” he stated. 

He prefaced the notion that art has always driven our culture’s commerce and that the now concluded Hermès case against Rothschild was “an attack on art’s fundamentals,” as he couldn’t see any real difference between what Rothschild was doing and what other artists – both good and bad – have done when they were making art about our culture’s commerce that often included trademarked goods.

Pointing out a number of examples, Dr. Gopnik referenced Warhol and his Campbell’s Soup series, Coca-Cola and Brillo Boxes, photo artist Christopher Williams and his Nikon cameras images that sparked waves at the Museum of Modern Art, as well as political artist Hans Haacke, who is best known for creating works around the Marlboro and Mobil trademarks that were showcased in a New Museum show in 2019. 

Similarly, Rothschild’s MetaBirkins, according to Dr. Gopnik, also “positively obscures their connection to the brand.”

“The Birkin-ish bags Rothschild depicted could only ever have existed in his over-fertile imagination,” he explained, adding that this portrayal of them covered in “the most garish fake fur” could have been impossible to imagine on an actual Birkin bag, as Hermes’ product line was a symbol of good taste, whereas, Rothschild’s digital images were “as goofy, campy, and unrestrained as could be.”

The jury’s ruling in Hermès International v. Rothschild is certainly a landmark, but still fails to address the issue of how future art critics will be treated when it comes to testifying as subject matter experts on future cases involving digital art and collectibles. 

If one thing is for certain, art critics will undeniably play a crucial role in how modern day (digital) art is interpreted in these emerging tech infrastructures, such as NFTs. 

It’s up to each and every one of us to do our part in ensuring that the average person understands the effect these new technologies will have on our culture that has so heavily relied upon art, commerce, and intellectual property, and tastefully balance that with protecting trademark owners’ rights in original works of authorship.

You can read the decision at Hermès International v. Rothschild, 22-cv-384 (SD, NY 2023).