An NFT creator is battling French fashion giant Hermès over a set of MetaBirkin digital collectibles inspired by its famously expensive bags.
Courts have been tasked with deciding whether MetaBirkins’ issuer, Mason Rothschild, has infringed on Hermès copyright.
To support their case, Rothschild had enlisted art critic Blake Gopnik, famous for penning Andy Warhol’s biography. Gopnik’s testimony supported the argument that the MetaBirkins NFTs represent free artistic expression, according to a report from The Fashion Law.
But Rothschild won’t be allowed to present the testimony in court after all. Judge Jed S. Rakoff made the ruling on the first day of the trademark trial, a move that could ruin Rothschild’s chances of comparing his work to Warhol’s art, Bloomberg Law reported.
Rakoff reportedly permitted Hermès’ bid to exclude the expert testimony without providing much detail.
Hermès sued Rothschild one year ago, alleging his MetaBirkin NFTs violate its trademark rights by depicting them in colorful fur and advertising them. The luxury retailer has claimed Rothschild offered the NFTs at a Dec. 2021 Art Basel fair in Miami in a “get rich quick” scheme without seeking permission.
OpenSea had delisted MetaBirkins by Jan. 2022, shortly after Hermès sent Rothschild a cease and desist, with the collection reportedly seeing $1.1 million in trade volume. The NFTs, of which there are 100, are still listed on LooksRare. They’ve generated 15.5 ETH ($24,350 at current prices) in sales volume via the platform, with 83 different owners.
Rothschild’s utilization of the Birkin brand is said to have misled consumers into believing the product is endorsed and sold by Hermès. The case is significant as it could shed light on how traditional trademark law could be applied to NFTs.
In the week before the trial, Hermès moved to inspire the court to exclude some of Rothschild’s proposed exhibits, including Gopnik’s testimony.
Hermès’ counsel further argued that Gopnik shouldn’t be allowed to testify because his opinions aren’t based on reliable data or methodology “to support his mere ipse dixit assertions,” and that his opinions “do nothing more than repeat Rothschild’s account of his own statements and actions.”
In his pre-trial testimony, Gopnik reportedly opined that Rothschild’s MetaBirkin NFTs fell under the same concept pioneered by Warhol called “Business Art.”
Despite granting Hermès request, the judge reportedly criticized the luxury brand’s attorneys for explaining how NFTs work in a complex manner, saying that the jury was left baffled.
Gopnik would have been the only person who could produce analytical comparisons of Warhol and Rothschild’s art.
Updated Feb. 2, 2023 at 4:38 am ET: Added sales context.
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Source: https://blockworks.co/news/hermes-metabirkin-nft-lawsuit-begins-with-blow-for-creator