Are Artists Infringing Hermès Intellectual Property Rights With ‘Baby Birkin’?

The famous Paris fashion house Hermès launched its iconic Birkin bag in 1984. Since then, the Birkin has become a timeless classic that people all over the world are willing to pay tens of thousands of euros (or more) for. At the end of 2021, it turned out that a digital art print of Birkin, known as ‘Baby Birkin’, was also in high demand when the NFT (‘non-fungible token’) of this digital bag in the amount of approximately 20,000 euros was auctioned. . Hermès did not like this and sent the NFT artists a demand letter for alleged infringement of Hermès’ intellectual property rights. In this contribution, Köster Advocaten explains what exactly happened.

What is Baby Birkin?

The Baby Birkin artwork is a wry nod to the iconic Hermès bag. It is a digital creation in the form of a 2000 x 2000 3D max animation. The transparent bag shows how a human embryo develops at all stages of a 40-week pregnancy. Stars are visible in the background and the animation features the space-age.wav soundtrack, a sound clip featuring space vibes

The Baby Birkin animation was created by artists Mason Rothschild and Eric Ramirez and released in NFT form, leaving only a ‘real’ ‘copy’ of this digital Birkin.

MetaBirkins

After the Baby Birkin, the artists have created other NFTs under the MetaBirkins series, also inspired by the Hermès bag. Conceptually, these NFTs are meant to encourage the fashion industry to use less and less fur. These NFTs are also involved in the Hermès demand letter.

What is an NFT?

An NFT is a non-fungible token (loosely translated: a non-replaceable token). The NFT technique ensures that a digital item, which can be anything, is given a unique serial number in the crypto world, making the item non-tradeable. In short, this means that only one person can own the original copy of the digital item. The owner of this copy is registered in the blockchain. The blockchain again ensures that no one else can claim that he/she owns the NFT, while that is not true. So the owner of the original copy does not get a physical item, but a kind of exclusive right to the first and only copy. The owner can sell this copy (using the blockchain) for someone else to become the owner. Due to the unique aspect of NFTs, digital asset trading is becoming more and more popular.

Can Hermès act?

Applied to this case, it means that the Rothschild and Ramirez Baby Birkin is even more exclusive than a (physical) Hermès bag and the MetaBirkins could also have been sold exclusively. So it’s understandable that the NFT is a thorn in Hermès’ side. But: Does Hermès’ claim that Rothschild and Ramírez infringed various intellectual property rights, including trademark law and Hermès’s copyright, have any chance of succeeding?

Rothschild thinks not. In an open letter to Hermès (posted on his Twitter account), he responded to the accusations by stating that he is allowed to make this animation as his own interpretation of the world he perceives around him. He also claims that he has distanced himself enough from Hermès design and nowhere does he mention the exclusive fashion house brand.

Under Dutch law, it remains to be seen whether the artists would win a potential lawsuit against Hermès. Under certain conditions, it is allowed to draw a third-party brand (in this case ‘BIRKIN’ registered by Hermès) and/or copyrighted (in this case the characteristic elements of the Hermès bag that are copied on the Baby Birkin and the MetaBirkin ) to incorporate it into a work of art, copy it and/or devise a variation or parody of it. The difficulty, however, is that the jurisprudence on this matter is very casuistic and it is difficult to predict the outcome of a procedure. It is the subjective judgment of a judge that is allowed as a ‘parody’ or work of art and where the judge finds that the limit of what is permissible has been exceeded. The different lawsuits are also difficult to compare, because it is always about the elaboration and details of the specific case. Therefore, it is certainly a moot case, but the outcome of such a case cannot be predicted.

It is not yet known whether Hermès will file a lawsuit against the artists or leave it at that, in part due to the attention the matter has already attracted. That attention for Rothschild and Ramírez is probably not a disadvantage. Controversially clashing with an established fashion house, the artists will only become more famous in the future and the digital art it will only become more popular. As exclusive as Hermès, or perhaps more.

Written by Nine Bennink, a lawyer at Köster Advocaten in Haarlem. Köster Advocaten regularly deals with current legal issues. Watch: kadv.nl

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