MetaBirkin NFTs Were Artistic ‘Experiment,’ Creator Tells Jury

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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.

‘Technically Metaverse Ready’

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.

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