Are NFTs art - yes or no? A US court is about to decide...

On the surface, this seems like another forgettable, dime-a-dozen copyright lawsuit.

In reality, it could impact the art/digital art world, pretty darn significantly.

Here's what's happening:

​Hermès, makers of the famous and much desired Birkin Handbags, are suing digital artist Mason Rothschild for copyright infringement.

Why? He created an NFT series called 'MetaBirkins,' featuring digital reinterpretations of the classic Birkin bag.

(Similar to what Andy Warhol did with the Campbell's Soup can).

For context, they weren't virtual wearables, just plain old .jpgs.

The reason we give you that context is because Hermès' suit claims that the project caused confusion among its consumer base, which Mason leveraged to enrich himself.

Most copyright claims tend to build on similar arguments, related specifically to 'confusion in the marketplace.'

If Mason were to have created a jetliner and called it 'Birkin Air,' Hermès would have a tough time arguing their case.

But unfortunately for Mr. Rothschild, the name and likeness he used are almost exact.

So let's recap...

It has Birkin in the name, and features digital recreations of Birkin bags...

Mason is obviously guilty, right?

Through the lens of a product release - probably. But through the lens of art - not so much.

If we had boil down the basic gist of Mason's counter argument(s), we'd put it like this:

Just because it's digital, doesn't mean it isn't art.

If the work were printed/painted/screened onto paper - no one would have bat an eyelid, because it would have presented as 'art.'

But regardless of medium, artists should be allowed to comment on society, using whatever cultural iconography they please, without being sued by corporations.

Campbell's soup was chill with Andy Warhol, why can't you be chill w me?

So, there're the two sides. Now, here's what's at risk:

If Hermès wins, it'll set a legal precedent.

One which other brands/corporations could then point to, and use to silence artistic commentary that doesn't favor them.

(And that's no fun. No fun at all).