Mason Rothschild invokes First Amendment right to create MetaBirkins NFTs, rejects Hermes’ ceast and desist letter

  • During Art Basel in December 2021, Mason Rothschild created and sold MetaBirkins NFTs, which depict Hermes’ iconic Birkin bag. Rothschild, however, altered the Birkin bag design by adding faux fur to the digital design depicted in the image.
  • Rothschild’s NFTs reportedly sold over $1.1 million in volume. (Hypebeast)
  • We analyzed the potential copyright and trademark infringement claims that Hermes might bring in the United States in a prior post. If some buyers were located outside of the United States, the laws of the countries where the buyers lived might also apply to those transactions.
  • Hermes reportedly sent Rothschild a cease and desist letter. (Fashion Law)
  • In response, Rothschild has posted a statement on Twitter invoking a First Amendment right to depict the Birkin bag in his NFTs. His letter states:
  • I’ll need to think more about the First Amendment argument. U.S. courts have been generally unreceptive to standalone First Amendment arguments within the context of copyright and trademark law, instead opting to analyze these sorts of issues under the respective fair use exceptions. Rothschild’s statement provides some additional information on how he views his MetaBirkin NFT creations–which, upon my initial impression, do sound helpful to a fair use defense.