A federal judge in the United States has prohibited digital artist Mason Rothschild from showing a series of digital artworks in the form of non-fungible tokens at a museum in Sweden. The NFTs feature 3D renderings of Hermès’s famed Birkin bags covered in fur.
Rothschild had been embroiled in a legal battle with the luxury house after Hermès sued him over the NFTs in 2022. A jury unanimously found him liable for trademark infringement and cybersquatting, ordering him to pay the fashion giant $133,000 in damages after a nine-day trial in February 2023. The court issued a permanent injunction, preventing the artist from further infringing on Hermès’ trademark with his NFTs.
U.S. District Court Judge Jed Rakoff later blasted Rothschild in an order as a “straightforward swindler” who attempted to cloak his fraud by “posing” as an artist to mint his “MetaBirkin” tokens. In response to the verdict, Rothschild insisted in a statement that “the First Amendment gives me the right to make and sell art that depicts Birkin bags.”
Earlier this year, in January, the artist petitioned the court for clarification about whether the injunction would prevent him from giving permission to the Spritmuseum in Stockholm to display the NFTs in an upcoming exhibition on Andy Warhol and business art.
Hermès filed a reply seeking to block it in February. The court then heard from two witnesses: Mia Sundberg, a representative for the museum, and Blake Gopnik, a critic who had helped organize the planned show. (Gopnik previously wrote a Washington Post op-ed titled “A misguided jury failed to see the art in Mason Rothschild’s MetaBirkins.”)
Court documents show that the museum planned to make note of the lawsuit against Rothschild in descriptive text accompanying the MetaBirkins if permission for their display were to be granted.
The judge ultimately agreed with legal arguments from Hermès that Rothschild provided no details about the permissions he would be granting to the museum, including whether the exhibition would include merchandising or how it planned to promote the show.
“We do not know, for example, if the license will cover selling goods featuring MetaBirkins in the museum shop or elsewhere,” the fashion giant argued. As such, the court determined there is a risk that the exhibit would circumvent the injunction.
“Without a clear, concrete statement that, as the jury unanimously found, [Rothschild] designed the MetaBirkins NFTs to dupe the public into believing that Hermès was somehow behind the images, there is little reason to expect that those visiting the exhibit would understand that [his] creation and distribution of MetaBirkins NFTs was a fraudulent endeavor in which Hermès had no part,” the judge said.
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