NFT Art Not Immune From IP Law

A recent court decision suggests that the world of non-fungible tokens (NFTs) will be subject to trademark law, albeit “balanced against first amendment principals on a case by case basis,” says a post from law firm Baker Botts. In that decision, Hermès Int’l v. Rothschild in the Southern District of New York, a series of images purveyed as MetaBirkins and resembling the iconic and pricey Hermès Birkin handbags, were found to have violated the Hermès trademark. Some of the MetBirkins images sold for thousands of dollars.

According to the artist-entrepreneur Mason Rothschild, in his letter to the company after he received a cease-and-desist order late last year, the images were intended, in part, as a statement on animal cruelty and apparently also something of a tribute to Hermès.  In his letter, he called MetaBirkins a “playful abstraction of an existing fashion-culture landmark,” and a “commentary on fashion’s history of animal cruelty, and its current practice embrace of fur-free initiatives and alternative textiles.” The letter, in which Rothschild also says he is “sorry you were insulted by my art,” but that he won’t apologize for it, can be read in an article about the matter in fashionlaw.com.

“As we enter into a new digital era, brand owners can take comfort in that they can still enforce and protect their trademarks and copyrights,” the Baker Botts post concludes, and NFT creators “need to think about existing intellectual property law because courts will likely apply them to digital assets, like NFTs.”