In the case of Hermès, the artist claims that the First Amendment provides protection to create art that is a commentary on culture, an argument known as “fair use”. However, because the artist is benefiting financially (the NFT “Birkin” artworks were recently trading for as much as $790,000) and there is a strong likelihood that consumers might think they are authentically Hermès (which Zerbo says is a central consideration in trademark infringements claims), the NFTs might be perceived as more akin to counterfeits than cultural commentary.
The legal team at Louis Vuitton is already making similar judgement calls about digital copycats, including the communicated purpose of the piece, the commercial nature and the likelihood of confusion, according to Maltbie. “If you take it to the NFT level, it’s even more abstract. It’s now just a piece of digital art that can be copied and replicated time and time again, and it makes the connection between harm to the brand and a target that can be enforced against even more difficult to figure out,” he said.
Jesse Lee, founder of Basic.Space, which worked with Rothschild on both Birkin-inspired projects, says the project was far more popular than the artist expected, and several celebrities have signed up to acquire one through a “pre white list”. Perhaps unsurprisingly, Basic.Space’s Lee is pushing for brands to “collaborate with creatives who are native in the space,” rather than go it alone. The NFT-maker is in talks with a number of other luxury brands to discuss future partnerships.
“I don’t think it’s debatable that brands need to look into the metaverse and creating these digital assets for themselves,” he says. “Web3 is the new wild, wild West, and the rules of engagement will change.”
Lupo recommends that brands look further ahead to licensing and distribution agreements so that they retain rights to the metaverse. Trexler encourages brands to think about the technology they can patent that goes beyond imagery and into metaverse spaces, experiences and elements, even including haptics that could be applied to the touch and feel of garments. “It’s not just about digital real estate but digital experiences you want to own and the tech that produces those. There’s a real opportunity for fashion.”
Just because fashion brands aren’t saying anything publicly doesn’t mean they aren’t thinking about it, says Trexler. “There is no question there is more to come. The question for fashion brands: do you want to keep playing defence like this? Even though [Hermès] is sending a cease and desist that sounds aggressive, it’s still a defensive move because other people got in the marketplace before they did.”
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