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.
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