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Jury sides with Hermès in the first NFT trademark trial  

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Six Hermès Birkin bags (five red, one black) are lined up next to each other on a table.

Art critic Blake Gopnik explains why he thinks the jury came to the wrong conclusion. MEHDI FEDOUACH/AFP/Getty Images

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A U.S. District Court has ruled that digital artist Mason Rothschild’s non-fungible tokens of the fancy (and expensive) Birkin handbag broke trademark rules.

The case in question is being called the first NFT trademark trial. You know, non-fungible tokens, those hard-to-forge certificates that say, “This is the original work.” The big luxury brand Hermès sued Rothschild alleging that his MetaBirkin NFTs, depicting the famous handbag made by Hermès, violated trademark law. Rothschild’s argument was that these are pieces of art, like Andy Warhol’s prints of Campbell’s Soup cans, and are therefore protected by the First Amendment.

Blake Gopnik, an art critic who has written a book on Warhol and whose work appears in the New York Times, agreed with Rothschild and worked to help the defense. Marketplace’s David Brancaccio spoke with Gopnik about the case. The following is an edited transcript of their conversation.

David Brancaccio: When you look at the image, first of all, it’s not just an Hermès designer Birkin bag that you see, it is altered by the artists. That’s something people need to understand.

Blake Gopnik: Yeah, it looks pretty much nothing like any real-world Birkin bag. It’s covered in one color or another of fake fur. And Birkin bags are all about, you know, high-class simplicity and this thing is boy, not high-class in any way. It’s clearly some kind of a joke about Birkin bags.

Brancaccio: There’s a test for some of this called the “Rogers test,” which allows artists to use trademarked stuff in their pieces as long as they qualify as art. And, there was another part of this, they don’t expressly try to confuse consumers. But then there’s the question of what qualifies as art and you and art critic weren’t allowed to testify.

Gopnik: Yeah, you know, it seems pretty clear to me that these things are right smack in the middle of the Warholian tradition in art. They’re commenting on the world of commodities. That’s what artists have been doing at least since Andy Warhol in the early 1960s. It’s obvious to me. If he’d wanted to really confuse buyers, he wouldn’t have covered his Birkin bags and fake fur. He wanted to make them as JPEGs anyways, right? These aren’t bags, these are pictures of bags. And artists make pictures of things.

Brancaccio: Now Blake, I have to bring it up because you have appeared on this program in months gone by being deeply skeptical about the art that underlies many of these non-fungible tokens, these digital assets known as NFTs.

Gopnik: You know, I’m not at all skeptical about the art that underlies them. Those are just pictures, like any other picture. You know, Mason Rothschild was selling JPEGs. I’m just skeptical about the fact that these NFTs, attached to the art, mean anything. And one of the things that Hermès was arguing in this case was that they weren’t really objecting to the digital images, they were objecting to the NFTs. Now, that’s kind of weird because NFTs don’t mean anything unless they’re attached to something.

Brancaccio: All right, so now the verdict is in. And your man, the artist, Mason Rothschild has lost.

Gopnik: Yeah, I’m heartbroken about it. I think it’s a terrible decision, but I assume that this thing’s gonna go to appeal. And I just can’t imagine that when it goes to appeal, which after all doesn’t involve a jury, then it’s a bunch of judges making the decision. I can’t imagine that they won’t overturn this. It really does seem kind of open and shut that this stuff is art and artists are allowed to make art about whatever they want.

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