By Isaiah Poritz
The artist behind the “MetaBirkin” nonfungible tokens who is battling the luxury retailer Hermès International SA at a trademark trial in Manhattan federal court took the stand to explain that the NFT project was an artistic experiment.
Mason Rothschild, the 28-year-old Los Angeles-based artist, told the nine-person jury on Wednesday that he decided to sell the MetaBirkin NFTs, which depict Hermès’ iconic Birkin handbags entirely covered in colorful fur, for about $450 each.
Actual Birkin handbags can range in price from $12,000 to around $200,000 and are Hermès’ best-selling product.
“That was part of the experiment,” said Rothschild, whose birth name is Sonny Estival.
“Let me see if I can sell them for almost nothing,” he said. “Is it the image or the actual product” that provides the value?
The trial is the first to focus on trademark rights in relation to NFTs, and the outcome may have broader implications for whether NFTs are art or commercial assets.
Hermès, which sued Rothschild last January for trademark infringement, is arguing that the NFT project was more like a commercial enterprise. He improperly capitalized on the Birkin brand and caused consumers to incorrectly believe that the NFTs are from Hermès, its attorneys said.
Rothschild has countered that his NFTs are works of art protected by the First Amendment.
He first took the stand on Tuesday afternoon, detailing his childhood interest in fashion and art, and his long history of working in “conceptual art.” His testimony is expected to continue on Thursday.
Rothschild said he was already involved in the NFT space before creating the MetaBirkins. Earlier in 2021, he said created his first two NFTs depicting dilapidated luxury chairs. He then created a single “Baby Birkin” NFT that depicted a fetus growing inside a transparent Birkin bag, he said, noting that it received media attention.
A “light bulb” went off in his head in September 2021, he told the court, when he saw that the Kering Group—a luxury retail conglomerate that owns brands including Gucci, Balenciaga, and Yves Saint Laurent—had issued a press release saying it would stop using fur in all of its products. Hermès hadn’t made such a pledge, he said.
Rothschild said that while he came up with the concept behind the project, he hired a designer to actually create the MetaBirkin NFTs. The two-dimensional, digital bags are covered in animated fur in a variety of colors and themes. Some contain more intricate designs such as the Mona Lisa, the fur colors of a monster character from the movie “Monsters Inc.,” and a painting by the artist Bob Ross.
The artist testified that he “minted” the 100 NFTs in December 2021, and they were sold based on a “white list,” which included celebrities like the rappers Future and Tyga, and the singer and social media influencer Madison Beer.
Rothschild said he created “MetaBirkins” Instagram and Twitter accounts to promote the project and created a server on the messaging platform Discord to interact with his fans. The Discord channel reached as many as 50,000 members, he said.
He said he also sought promotion from NFT influencers and collectors—who he referred to as “whales” in text messages shown to the jury.
Rothschild said he wanted to create a community around the project by polling and interacting with members of the Discord to “give them the feeling that they were in it together.”
“There are collectors of Andy Warhol who chat together,” he said.
The MetaBirkin NFTs went on to resell for tens of thousands of dollars, of which he received a 7.5% royalty, making him around $70,000 at the time, he told the court.
Hermès’ attorney, Oren Warshavsky of Baker Hostetler LLP, questioned Rothschild about dozens of his personal text messages sent to influencers, investors, and designers in the months leading up to the sale of the NFTs.
Warshavsky pointed to Rothschild’s text messages to two brothers seeking to invest in his future projects. They asked if the MetaBirkins could be used in the metaverse world called “Decentraland,” to which Rothschild responded: “They’re technically metaverse ready. Cause fully 3D.”
On the stand, Rothschild said that the current MetaBirkin NFTs are flat images that could only be used as a picture in a 3D metaverse, not a wearable item. However, he said that the software used to create the MetaBirkins’ fur fibers uses a 3D design.
Judge Jed S. Rakoff, who is overseeing the case, wrote in an opinion last March denying Rothschild’s motion to dismiss that his free speech defense would have fallen flat if the MetaBirkins were a “virtually wearable,” 3D bag. If that were the case, it would be a “non-speech commercial product.”
Warshavsky also suggested that Rothschild wouldn’t have known if the consumers purchasing his NFTs were incorrectly believing that they were buying products from Hermès. Close to half of the 100 initial customers were only identifiable through their crypto “wallets” or their usernames on Discord.
Hermès is represented by Baker & Hostetler LLP. Rothschild is represented by Lex Lumina PLLC and Harris St. Laurent & Wechsler LLP.
The case is Hermes International v. Rothschild, S.D.N.Y., No. 1:22-cv-00384, 2/1/23.
To contact the reporter on this story: Isaiah Poritz in Washington at iporitz@bloombergindustry.com
To contact the editors responsible for this story: Tonia Moore at tmoore@bloombergindustry.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com
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