Prominent Artists and Organizations File Amicus Brief Supporting Artist Mason Rothschild’s MetaBirkins Appeal
November 13, 2023 – Today a group of prominent artists and organizations led by art collective MSCHF and free-speech advocacy group Authors Alliance, supported by Harvard Law’s Cyberlaw Clinic, filed an amicus brief in the U.S. Court of Appeals for the Second Circuit supporting MetaBirkins artist Mason Rothschild and urging the Second Circuit to reverse the trial court’s judgment and permanent injunction, which awarded monetary damages to Hermès and barred Mr. Rothschild from promoting or selling his MetaBirkins artworks.
The group’s amicus brief in stresses the importance of the case for artists and freedom of expression, pointing out that just “as creators borrow from brands to communicate, companies borrow from creators to develop iconic trademarks and add their own sales pitches to leverage meaningful symbols and icons”—and noting, “As Hermès used Jane Birkin’s name to amplify its own brand’s expressive function, [Mason] Rothschild seeks to do the same as he references the status of a luxury Hermès handbag in his artwork to comment on and critique Hermès’s brand and mark.” The group seeks to educate the Court on the history of art and commerce, concluding that “[f]inancial motivations do not and cannot have any legal impact on the amount of First Amendment protection that a work of art receives.” Read more in Artnet and nft now.
The amicus brief follows Lex Lumina’s filing of Mr. Rothschild’s opening brief in the appeal. Mr. Rothschild argues on appeal that the judgment must be reversed because the trial court erred from the outset of the case by inquiring into the artist’s intent rather than applying the objective test set out in the Second Circuit’s seminal precedent, Rogers v. Grimaldi, which should have required dismissal of all of Hermès’ claims as a matter of law under the First Amendment. Mr. Rothschild additionally argues that the trial court erred in its jury instructions, which invited the jury to find that Mr. Rothschild had waived his First Amendment rights and led to the jury sending a note on its second day of deliberations indicating that it might be hung on the question of whether the First Amendment protected Mr. Rothschild and his art. Finally, Mr. Rothschild argues that the trial court erred in barring art expert Blake Gopnik from testifying at the trial, while allowing Hermès’ economics expert effectively to testify that the MetaBirkins are not art.
Read Mr. Rothschild’s opening appeal brief in Hermès International v. Rothschild, 23-1081 (2d Cir.), here.
