USA: an artist sentenced for NFTs of Hermès bags, created without authorization

The decision, rendered by a federal court in New York and quoted by several American media, was eagerly awaited because it was to mark an important milestone in the debate on intellectual property in the world of NFTs.

Popularized in early 2021, NFTs are certificates of authenticity associated with a computer file which can be an image, text or piece of music.

They are supposed to allow the traceability of the ownership of a virtual object.

Multi-media artist, Californian Mason Rothschild – real name Sonny Estival – had created in 2021 a series of images in the form of NFT, called MetaBirkins, which represented handbags inspired by the famous model launched by Hermès in 1984.

These MetaBirkins, made without the authorization of Hermès, were intended to be "a tribute to Hermès' most famous bag, the Birkin", according to the presentation of the NFTs on the internet.

The sale of these images brought in more than $1.1 million, according to documents produced by Hermès as part of the lawsuit.

Some of these NFTs are still available for resale on a specialized platform, at prices varying between 5,000 and 165,000 dollars.

Hermès had seized American justice in January 2022, arguing that Mason Rothschild "(had) infringed" and "(continued) to infringe" the intellectual property of the brand and threatened to continue, by making and selling the MetaBirkins.

The misuse, and without the company's consent, of the Birkin and Hermès brands "(was) likely to cause confusion and misinterpretations in the minds of buyers," said the Parisian house.

The artist had argued that his creations fell under the First Amendment to the US Constitution, which protects freedom of expression.

But the jury ruled that NFTs fell outside the scope of the First Amendment.

"It's a great day for big brands", but "terrible for artists and the First Amendment", reacted to AFP Rhett Millsaps, one of Mason Rothschild's lawyers.

Hermès "acted to protect consumers and the integrity of its brand", commented a spokeswoman for the saddler and leather goods maker.

© 2023 AFP