Jury Rules that NFTs Aren't Really Art

Better luck next time, NFT bros.

Birkin Baby

A new legal precedent just dropped in the case of Hermès versus Mason Rothschild, a self-described "conceptual artist" who used the company's iconic Birkin bags as a backdrop for his "MetaBirkins" non-fungible token (NFT) collection.

As the New York Times reports, Hèrmes won its lawsuit against the 28-year-old artist after he sold NFTs that featured the legendary handbag with all kinds of strange overlays, from a clear version that had a fetus edited into it to a fuzzy-handled one that had mammoth tusks.

A nine-person federal jury in Manhattan ruled this week that in spite of Rothschild's insistent cries of protected artistic expression, he had nevertheless infringed upon Hèrmes' copyright — and failed to meet a legal test used to determine what is and isn't art, too.

Using the Rogers test – named after the actress Ginger Rogers, who in 1989 sued filmmaker Alberto Grimaldi for using her trademarked name in the film "Ginger and Fred," only to have a jury rule that the filmmaker's use of her name was "artistically relevant" — the jurors in the "MetaBirkins" case determined that Rothschild's NFTs didn't meet that standard.

NFT Me Not

Back in the NFT halcyon days of early 2022, the artist claimed that his collection was "a commentary on fashion’s history of animal cruelty" after Hèrmes hit him with a cease and desist.

In the ensuing year, however, the NFT market has plummeted even worse than the cryptocurrency market undergirding it while the courts struggled to catch up with the ever-growing pile of lawsuits regarding these controversial and often exorbitantly expensive digital assets.

While the luxury goods industry has had its own forays into the NFT space, this case seems to boil down to one of the most well-known fashion houses in the world enforcing its ownership of its brand — and given the ever-lowering public temperature reading on crypto, it's not that surprising that a jury would find expensive digital images to be unworthy of the title of "art."

More on the dying NFT market: Business Geniuses at Amazon Hard at Work on Hot New Idea: NFTs