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Court’s Decision to Ban ‘MetaBirkins’ From Museum Show Is Challenged by Artist

The artist known as Mason Rothschild has filed a motion for reconsideration in an attempt to still have “MetaBirkins” NFTs featured in an exhibition at the Spritmuseum in Stockholm this fall.

Wednesday’s legal action in a New York federal court was the latest development between the Los Angeles-based artist and the luxury house Hermès. Last week U.S. District Court judge Jed Rakoff barred Rothschild, whose given name is Sonny Estival, from showing the digital tokens on a computer screen in the upcoming show “Andy Warhol: A Portrait of Commerce,” which will open in October. That initial denial for inclusion was first reported by ARTnews.

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Representatives at Hermès had not responded to requests for comment Thursday afternoon. The company has until April 10 to file its opposition, and the court is expected to issue a ruling a few weeks after that.

Last year Hermès International won its trademark infringement case against him with a unanimous decision. Hermès had sued the artist for creating and selling 100 MetaBirkins — colorful faux-fur Birkin bag-inspired non-fungible tokens — in November 2021. The luxury brand had successfully contended the NFTs confused consumers, diluted the brand and impacted its in-the-works plans for NFTs.

Rothschild and his legal team had insisted that the two-dimensional digital tokens were a commentary on fashion’s fur-free initiative, an experiment in replicating the luxury handbag’s perceived value and an act of artistic expression that is protected under the First Amendment.

Located in Stockholm on Djurgården island, the Spritmuseum bills itself as being “dedicated to Swedish drinking culture” and as “the permanent home to the internationally renowned Absolut Art Collection. The museum offers a wide range of pop cultural, culinary and tasting experiences.”

In Wednesday’s filing, Rothschild’s attorneys said that it had not misrepresented facts regarding the museum’s intention to include discussion of this litigation in the planned MetaBirkins exhibit. In this week’s filing, the artist’s legal team said that no one could be defrauded into a purchase at the exhibition, which was referred to as the museum’s “MetaBirkins” exhibit and would not involve any sales. It said Rothschild would be referred to as the “MetaBirkins” creator, “expressly disclaiming any affiliation with Hermès.”

His lawyers claimed that it would not be “factually correct” for the museum’s exhibit to say that Rothschild “was found by a jury to have committed fraud…”

The filing cited testimony by Mia Sundberg earlier this month that noted the museum would include a disclaimer in the “MetaBirkins” exhibit, making clear that it “has nothing to do with the brand of Hermès.”

Earlier this month Sundberg, the curator of the Absolut Art Collection, told WWD, “We do not wish to cause further legal difficulties for Mason Rothschild. However, I am not sure if the American judge or indeed Mason Rothschild himself can forbid us to place a computer in an exhibition in Stockholm and show the images on the net, where they already exist for everyone to see.”

This is the second legal action that Hermès has faced in recent weeks. In an unrelated matter, a civil complaint was filed on March 18 in a U.S. District Court in Northern California by two California residents who alleged that the company is a monopoly and the way it sells Birkins is a violation of antitrust law. Representatives from Hermès did not acknowledge multiple media requests seeking comment, nor did the luxury house’s outside counsel.

In their complaint, the plaintiffs, Tina Cavalleri and Mark Glinoga, allege antitrust and unfair business practices. An interview request was denied per one of their attorneys, Shaun Setareh of Setareh Law. The filing said the availability of Birkin bags is conditioned on customers purchasing ancillary products from Hermès. The multiple claims included that the French luxury house has “unlawfully tied their Birkin bags to their ancillary products through their sales associate incentive program.” Setareh declined to comment about the amount in damages that is being sought.

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