The artist Mason Rothschild and his attorneys squared off again Wednesday with attorneys for Hermès about his alleged trademark infringement in federal court in New York.
Hermès first sued him in January 2022, after his release of 100 “MetaBirkins” NFTs, digital images of imaginary fur-covered handbags in the style of the luxuy house’s prized Birkin handbag. Rothschild and his legal team have argued that his artistic expression is protected by the First Amendment. Rothschild and his team have contended that the MetaBirkins are two-dimensional works and are not three-dimensional handbags that can be used in the metaverse or in real life. They could, however, be hung on a wall like a painting in the digital world.
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During his cross examination Wednesday, Rothschild was shown a text where he described the MetaBirkins as “technically Metaverse ready.” He explained on the stand, “They are made in a 3D program but today they are 2D images…MetaBirkins are pictures of those 3D images in 2D.””
Much of Wednesday’s testimony focused on the development of the art project, how it was promoted, resold, named, an additional rollout that never happened and the artist’s reaction to the lawsuit. Both sides also hammered away about how integral the developer Mark Design was in making the MetaBirkins. Through the examination of numerous text exchanges, Rothschild said at the time that the MetaBirkins were being generated (in November 2021), he did not know how to use Houdini.
There was also a good deal of debate about efforts to “pump” and “schill” the demand for MetaBirkins, which was driven largely by influencers and art world “whales.”
In his own defense, the artist and his attorneys, reiterated that he had created the MetaBirkins as a commentary on the antifur initiative that was taking hold in the fashion industry at that time, and to see if the digital images could create some kind of illusion that could be comparable to the physical products. They highlighted how MetaBirkins were initially offered for $450 and the prices later rose to “tens of thousands” on the resale market, including one that was sold at one point for $45,000. The artist receives a 7.5 percent royalty for resales of MetaBirkins. Rothschild said that he personally minted the first MetaBirkin and has kept that one for himself.
Rothschild said part of the project derived from an earlier one — a “BabyBirkin” NFT, which featured a rendering of a Birkin.
Both sides agreed that Rothschild had promoted the MetaBirkins on his personal social media and had created ones for MetaBirkins on Instagram, Twitter and Discord, as well as setting up a site for MetaBirkins.
The jurors and the rest of those in court saw posts by Rothschild that included images of other artists that had incorporated Birkin bags into their work including CJ Hendry and Barbara Segal (who sculpted versions of them in stone).
Much of Wednesday’s testimony was a matter of semantics such as a cut-and-paste “typo” on an old resume and an exchange about “Tom Sachs Factory,” an NFT project created by another brand-inspired conceptual artist, Tom Sachs. Rothschild said, “Tom Sachs in general is an influence but the project itself was not.”
Rothschild’s legal team also shared some of the images that he exchanged with select people after being sued by Hermès, such as one of what looked like a MetaBirkin with the legal complaint displayed on it. He also spoke of one featuring an image of a dead crocodile draped over a fake Birkin bag, explaining that he knew Hermès had a little bit of history using crocodile skins (for select Birkin bags) and that the style’s inspiration, Jane Birkin, wanted to remove her name from the bag at one point. “I wanted to do this kind of as a ‘f.u.’” Rothschild said.
Numerous texts were shown regarding plans for an additional run of MetaBirkins and the possibility of introducing a faux fur-covered charm reminiscent of the leather “Rodeo” bag charm that Hermès sells. The latter would have been given to purchasers of MetaBirkins as a surprise gift that would have been dropped in their wallets. Both ideas were shelved after Hermes sued Rothschild in January 2021. Upon that happening, he got a lawyer and asked that they reach out to Hermès, he said.
“It sucks to get served. I wasn’t expecting it,” he said, adding that both sides had been in talks. Asked if he was angry, Rothschild said, “Definitely.”
Although Hermès’ legal team had all of the contact information for Rothschild and his attorneys, he said, “They served me at work a few times,” turning up at Terminal 27, holding up a photo of him to ask employees and customers about him.
In addition to his art, Rothschild spoke of his involvement with Terminal 27, an art-fashion-event space that he owns with his fiancé in Los Angeles. He also spoke of being the founder of the Web3-centric creative studio Gasoline. Rothschild said he is the first NFT artist to be represented by the entertainment company Electric Feel, as well as CAA.
To name the collection, Rothschild posted a contest on social media in October 2021. He said he liked the sounds of meta since Facebook had recently been renamed that and in video game parlance meta means what’s happening. Noting how going “fur-free was what was happening” at that time in fashion, he said, “I felt like it was a good pairing.”