When you think of Andy Warhol's famed Campbell's soup cans, do you think of great art or of IP theft? The same question is now being asked of NFTs, specifically in the case of legendary Parisian fashion house Hermes claiming the artist/NFT-maker Mason Rothschild stole its Birkin Bag IP to produce 100 "Metabirkins".

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As Vogue Business writes, Hermes alleges that the Metabirkins are not artistic commentary but trademark dilution and "cybersquatting (the practice of using a name in bad faith with the intent of making a profit)"—allegations a jury agreed with earlier this month and awarded Hermes $133,000 for. But Rothschild and his legal team have scoffed at the verdict—the first suit brought against an NFT-maker for this kind of IP infringement—and is appealing.

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• Blake Gopnik, an art critic for the New York Times and New Yorker, who is part of Rothschild's legal team, told Marketplace: "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."

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• “Today's verdict for Hermès is a landmark victory. It signals that the NFT market is not a legal free-for-all — simply waving the flag of fair use will not automatically exempt you from liability for using someone else’s IP. …Fashion brands have already been learning from this case how to protect their IP in this space even more effectively. Even before the verdict, it highlighted the value in seizing the first-mover advantage. In the IP metaverse, everything is evidence.” Jeff Trexler, associate director of Fordham University's Fashion Law Institute, told Vogue Business.

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The Rogers Test

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In 1988, actress Ginger Rogers sued producer Alberto Grimaldi for using her name and likeness in a film and violating her trademark rights, right to publicity, and for "false light" defamation. The US Second Circuit Court of Appeals ultimately sided with Rogers, and created the "Rogers Test" which states that a trademark holds if it has no underlying relevance to the artistic work, or if that work explicitly misleads about the source. This test was the central argument of the Hermes-Rothschild case, notes Vogue Business.

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The Verdict

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Clearly, it’s difficult to define what is and what isn’t art. Especially since everyone has their own ideas. To that end, whomever ultimately prevails in this case, it may not set such a firm precedent.

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