MetaBirkin creator draws support from MSCHF & artists

Designer continues to rail against “broken justice system” following loss against major fashion house | Prominent free speech activists MSCHF, The Authors Guild and Harvard Law champion First Amendment arguments and the application of Rogers test.

The designer of the MetaBirkin non-fungible tokens has attracted some significant advocates in his legal fight against luxury brand  Hermès, most notably from the art collective  MHCSF and  The Authors Guild.

Earlier this year, Mason Rothschild  lost his high-profile case against the French fashion company at a federal court in New York, which held that he was liable for trademark infringement.

At the time, he castigated the ruling as “a sign of a broken justice system” and vowed that the dispute was “far from over”.

Now, a coalition of artists, organisations, and free speech activists have collectively submitted an amicus brief endorsing Rothschild’s argument that his creations should be constitutionally protected.

Harvard professor writes brief

Their brief, filed at the  US Court of Appeals for the Second Circuit on November 13, emphasises “the fundamental tension between the First Amendment right to free speech and the inherent speech-restrictive body of law that governs trademark and trademark protection”.

It is spearheaded by New York-based art collective MHCSF, which has its own history of  litigation with brands such as  Vans and  Nike.  Christopher Bavitz, a professor of law at Harvard Law School wrote the brief, which is also backed by digital design studio  CTHDRL as well as visual artists Alfred Steiner and Jack Butcher.

The coalition urges the appeals court to reaffirm the precedent set in Rogers v Grimaldi, in which the court held that the First Amendment protects the use of trademarks in the titles and content of expressive works from infringement claims—unless the use of the mark has no artistic relevance whatsoever or is explicitly misleading as to the work’s source or content.

It adds: “Cultural commentary and critique are vital to a free society, and the Rogers test provides a reliable way to protect these interests.”

The brief looks at historical and contemporary examples of artists engaging with commercial symbols to critique consumer culture, asserting that an artist's financial motives should not diminish the expressive value of their work nor their First Amendment protections.

First Amendment filter needed

The coalition also stresses the need for a clear and objective First Amendment filter to circumvent the complex “likelihood of confusion” test in trademark cases involving expressive works, arguing that the lack of such a filter could severely hinder artistic expression.

It continues to refer to the Supreme Court's recent decision in  Jack Daniel’s Properties v VIP Products in which the court upheld Rogers and reaffirmed that the test “offers an escape from the likelihood-of-confusion inquiry and a shortcut to dismissal”.

The amici curiae conclude by calling for the reversal of the district court's judgment favouring Hermès, championing Rogers’ objective test as essential for balancing trademark owners’ rights with the imperative of artistic freedom to depict and comment on brands.

Rothschild has described his creations as a  fusion of art, commentary on fashion, and digital expression.

‘Archaic interpretations’

Commenting on this support, he said: “This case transcends MetaBirkins. It’s pivotal for the future of artistic freedom, ensuring that cutting-edge creative expression isn’t hindered by archaic legal interpretations.”

Last week, Rothschild filed his opening brief in his appeal, arguing that the district court “erred from the outset of the case” by failing to apply Rogers’ two objective factors to dismiss Hermès’ complaint.

It highlights alleged “significant errors”, including the court’s “flawed jury instructions”, and the district court’s exclusion of the testimony of art critic and historian  Blake Gopnik.

He further argues that the “prejudice from the district court’s errors” was apparent from a note sent by the jury in its second day of deliberations indicating that it might be hung on the question of whether the First Amendment protected his art.