Imagine that nine jurors walk into a courtroom, are shown an NFT collection, and asked a deceptively simple question: are these items art or commerce?
That riddle, in a meta sense, is one that has gripped culture at-large ever since NFTs erupted into popular consciousness two years ago. Since then, the nascent NFT industry has attracted tens of billions of dollars in trading volume, hordes of rabid critics, and just as many tribes of fervent believers. To detractors, NFTs represent everything wrong with speculative capitalism. To devotees, everything right about the innovative spirit of art and technology.
On Wednesday, a Manhattan federal district court handed down what some saw as a definitive answer to The Great NFT Debate: the jury found digital artist Mason Rothschild violated trademark laws by selling MetaBirkin NFTs, unauthorized collectibles that riffed on the iconic Hermès Birkin handbag line.
Rothschild said his collection was protected under the First Amendment. The jury disagreed, determining the project did not possess sufficient “artistic relevance” to be considered free speech.
NFT critics celebrated the verdict—the first ever in an NFT-related trademark case—as a crushing blow to the nascent medium’s artistic legitimacy. Meanwhile, true believers bemoaned the judgment as a dangerous precedent poised to snuff out free speech.
In reality, it was neither.
Hermès’ victory Wednesday was certainly a boon for the legacy brand and others like it, seeking to protect their marks in rapidly expanding digital marketplaces. But it mostly related to trademark law, not NFTs in particular. Further, the case—as a federal district jury trial—established no legal precedent.
Even if it had, the Supreme Court is set to hear a landmark case on the subject of trademark laws and artistic license next month. That verdict will
