On January 14, 2022, Hermès International and Hermès of Paris, Inc. (“Hermès”) sued digital artist Mason Rothschild in the Southern District of New York for creating and selling “MetaBirkins,” a collection of NFTs tied to digital art depicting tote bags inspired by the iconic Birkin bag. Hermès alleges that Rothschild’s art appropriated its BIRKIN trademark rights and constitutes unfair competition, trademark infringement, and dilution by blurring. This case gives rise to the following questions for digital artists and brand owners alike: (1) when does Appropriation Art infringe the original creator’s trademark rights and (2) does the non-fungible token (“NFT”) medium influence the analysis?
1. Appropriation Art
Appropriation art borrows or copies an iconic or universally recognizable work and reframes it. A famous appropriation artist might come to mind: Andy Warhol. Warhol is known as the painter of green Coca-Cola bottles, the man who elevated Campbell’s soup cans into art, the iconic pop artist whose works are displayed worldwide – and, more recently, the artist whose estate has been litigating intellectual property suits.
The use of appropriation in art certainly raises copyright issues, and has led to a number of copyright infringement lawsuits. Courts do not find every example of appropriation art to infringe the original work they imitate, such as Jeff Koons’ Niagara, 2000 painting that was inspired by Andrea Blanch’s copyrighted photograph, Silk Sandals by Gucci. On the other hand, courts have found some examples – most notably, Andy Warhol’s “Prince Series” – not transformative enough to qualify as fair use but are instead substantially similar to the appropriated original image and infringe.1 The Second Circuit’s application of the fair use test (particularly the “transformative use” element) to the “Prince Series” has one conceptual artist, Barbara Kruger, asking the Supreme Court to look into…
