Meta Realty, over and beyond: Hermès VS. Rothschild
The capacity for deluding ourselves that today’s reality is the only true one, on the one hand, sustains us, but on the other, it plunges us into an endless void, because today’s reality is destined to prove delusion for us tomorrow; And life doesn’t conclude. It can’t conclude. Tomorrow if it concludes, it’s finished.
Is reality therefore an illusion? Is the illusion therefore much more real than could be imagined?
‘Reality is merely an illusion, albeit a very persistent one’ Albert Einstein would state, thereby overturning, after centuries, the granite certainties generated by empiricism, and then by the Enlightenment reason. In a world in which reality has always been fascinated – when not subordinate – by the surreal, that’s when, now and again, the whole of society acts in such a way as to generate stories that supersede reality, even managing to go beyond tangibility, as the History of the twentieth century and of the new millennium teach us, day by day.
The massive advent of technology, of the digital, of the various social media, of the virtual and augmented reality, especially in the last few years, has brought into discussion whole ways of operating and living. Art, that has always anticipated these processes, although not always reaching a copious and vast audience, had already demonstrated, many years ago, that beyond the space that is purely real and that can be perceived through the senses, it was possible to create or recreate: a dual reality alongside and parallel to the one we are familiar with, capable of defining the edge of a world, a virtual universe.
Many years before Crypto Art and the NFT – on which the lawyer Cristina Bianchi published a focus for Jaumann clarifying a few fundamental aspects – and also before Digital Art as we now know it, there existed a current, an artistic movement conceived in the 1990s that created works of art that could only be used online. It involved Net Art or net.art, that was conceived in the early days of the Internet and computers and when they were beginning to form a presence in the everyday life of part of the global community.
Net Art is the name coined by the Slovenian artist Vuk Ćosić to indicate those works whose main medium was the Internet itself, or rather that of softwares, codes, browsers and emails typical of that universe. Stripping away the frills, the works of these artists were “simple” websites, conceived and designed with artistic, conceptual and aesthetic purposes. What was the goal of ‘net artists’? A radical and strong critique of the new technologies. The aim of this current was to construct a ‘new’ interactive and free space in which to allow the user to actively take part, to reflect on the nature of cyber space and on the disruptive advent of the high tech: collaboration and deconstruction can be identified as key elements of Net Art, whose central figures were often collectives of arts, sometimes even anonymous.
‘When the machines are on and your fingers are on the keyboard, you are in connection with some space that is beyond the screen. And this space is only there when the machines are on. It’s a new world in which you enter. (…). It’s not about things, it’s about connections.’
In the words of the Canadian artist, pioneer in the artistic use of the Net, those subjects that since the 1990s have characterised the relationship between art and telecommunication are summarised. In this process, however, the attention essentially shifts from the object to the creative process, maximising the possibilities offered by remote communication – telephones, faxes, satellite systems, computer networks, the Internet – and leading to its apex is a choral, transversal and continuous artistic experimentation.
The fascination for technology, let’s not forget, has its roots in Futurism, reaching satellite performance art of the 1960s and 1970s or even to the conceptual art of Vincenzo Agnetti without stepping beyond the Italian borders and without even mentioning here Ars Eletronica of Linz, festival, award, laboratory and museum centre, based on the permanent experimentation relating to art, technology and society.
‘The secret of reality, and also that of our existence, lies in the things of our everyday life, but also in an objectivity that transcends their perception.’
Let’s return however to the reality of art that seems to want to draw new life from the cyborg universe, shifting the focus to the translation – even ironic – between the two space and time dimensions.
Art Basel Miami, December 2021: the artist Mason Rothschild exhibits the project MetaBirkins, thus presented on the artist’s website:
“MetaBirkins is a collection of unique 100 NFT created with faux fur in a contemporary range of colours and graphic executions. The creator Mason Rothschild began to work on MetaBirkins shortly after the success of Baby Birkin, a unique NFT, published by Forbes and Vogue that was sold at auction for 5.5 ETH.
In response to the request of the community, Rothschild developed a new series, this one based on the acceleration of the “fur-free” initiatives of fashion and on the use of alternative fabrics.
MetaBirkins is now available for sale on LooksRare.
We are affiliated, associated with, authorised, approved by or in some way officially connected with HERMES, or with one of its subsidiaries or affiliated companies. The official website of HERMES can be consulted at the address https://www.hermes.com/”
Surprise, Success, Estrangement, Legal Recourse
This is the path, in short, that the artistic operation of Mason Rothschild implemented and that is still in progress. But what happened? With the acclaim of the public of Art Basel, of the new public of NFTs and of the crypto currencies, what came next was an exponential growth in commercial value: the NFTs of MetaBirkins reached and exceeded the real value of the actual Hermès Birkins, in a context in which the value of a bag is measured in a range from 0 to Hermès. And what does it mean transforming a Birkin into an NFT? Referring to the Collins Dictionary which describes a Non-Fungible Token as being ‘a unique digital certificate, registered in a blockchain, that is used to record the ownership of an asset as a work of art or a collector’s object’ – assuming that the work is an original – what identity would the Rothschild MetaBirkins hold?
It is this premise that leads on to everything: Hermès, struck by the event, expressed its opinion through the words of a spokesperson who, on the pages of the Financial Times – and not of a fashion magazine – pronounced the following: ‘These NFT breach intellectual property and trademark rights and are an example of fake Hermès reproduced in the metaverse’.
So? Is the metaverse a place where it is possible to counterfeit luxury objects, style icons, just like in the actual counterfeiting market? But what is supposed to be censored? The expressive and creative freedom of a digital artist or the commercial possibilities put in place by an artistic process?
We didn’t need to wait long for Hermès’ response, quite the opposite. The French fashion house began legal proceedings against the artist, Mason Rothschild, suing him. An answer that follows a further question: if the MetaBirkins had not had remunerative power, would they have caused such a stir? Do the 100 examples of NFT sold on the marketplace of around 45 thousand dollars really represent competition for the company?
Business of Fashion published the news according to which Hermès delivered to the ‘Southern District Court of New York a 47-page citation against Mason Rothschild’, defining the artist as a ‘digital speculator trying to get rich quick’.
The accusation by Hermès – which can be publicly consulted on www.schwimmerlegal.com – underlines just how much Rothschild has worked in bad faith, removing the Hermès brand and adding the prefix Meta: ‘There is no doubt that his success stems from his confused and destructive use of the famous brand Hermès’ they confirmed to the 24, Rue du Faubourg Saint-Honoré.
For his part, the artist defended himself, admitting that his MetaBirkins are simply the ‘abstract and playful version of what in the current fashion culture is a point of reference. I am not creating and selling fake Birkin bags. I have created works of art that depict imaginary Birkin bags covered in faux fur.’
If the artist issues declarations through the social channel Instagram, the Parisian fashion house goes straight through the courts. What might be the epilogue of this diatribe? First and foremost it is essentially impossible for the artist to remove the 100 MetaBirkins from the metaverse; despite this, Hermès continues to claim that ‘there is no doubt that the success of Mason Rothschild stems from his confused and destructive use of the famous Hermès brand.
On the one hand, it would seem to be clear that the concept of art has, in this dispute, been overshadowed by another issue: the possession of luxury in the metaverse or the dispute relating to intellectual property that, in the era of NFTs and blockchains, is about to explode.
In such a random dimension but not too much like the metaverse, perhaps it’s difficult to connect to themes such as quality, uniqueness and exclusivity, which is why the digital image was created through NFTs, in order to create an artificial exclusivity. The matter may seem as complex as it is paradoxical; it is often thought that the content of the NFT is within the actual token, while this is not actually the case and, as such, in truth the non-authorised reproducibility or the fact of counterfeiting is not proven. While the legal process runs its course, Hermès has requested that Rothschild returns the entire profit generated by the sale of the MetaBirkins and that he should compensate the maison for the damage caused and also pay for the legal fees. Should the courts decide in favour of Hermès, the digital artist will need to hand over to the Parisian company all the products and the relative advertising materials of his works for these to then be destroyed. However, while it doesn’t actually involve paper to be torn up, it is worthwhile remembering that an NFT cannot be deleted from the blockchain, at most it could be stored at an inaccessible computer address and target companies that operate in such a complex sector.
It was precisely one of these large marketplaces, specialising in NFT, OpenSea – cited by Hermès together with the artist – after the letter of the French maison -, that removed Rothschild’s creations who, however, transferred his creations elsewhere, supported by the virtual community.
Through its own Instagram account, Mason Rothschild clarified a few matters: ‘I neither create nor sell Birkin bags. Mine are works of art that depict imaginary Birkin bags, covered in fur, that I can create and sell: my lawyers from Lex Lumina Pllc, referring to the First Amendment, state this, which allowed Andy Warhol to market his reproductions of the Campbell tins. The MetaBirkins are a playful abstraction of a milestone of fashion culture. I reinterpreted their shape, materials and name. The MetaBirkins are also a statement on the fashion history involving cruelty to animals. […] Talking about art, selling MetaBirkins as NFTs is like selling them in the form of physical prints. […] There is a new current of innovation and evolution and your role as a big brand is to give a voice to young creators and artists, not to suppress them. […] You could be part of an incredible movement’.
Rothschild refers to big precedents such as Andy Warhol, overturning the concept of U.S. Pop Art and accuses Hermès: ‘My selling of art using NFTs does not change the fact that it actually involves art. It is clear, reading the motivations of Hermès, that the brand does not understand what an NTF is or does’.
A strong and clear message. Just think if other experiences that, in the past, have touched another big fashion brand, Gucci, that, with a visionary approach, battled with artists that used its branding – Gucci Mane or the artist GucciGhost – and decided to integrate the work of these artists in their own official collections, with obvious and huge economic returns.
At the moment, however, this does not seem to be the intention of Hermès. And besides the damage, there is a hint of a further insult: if the Hermès Vs. Rothschild dispute has brought the value of intellectual property in the sphere of the web to the forefront, a serious problem relating to the market of NFTs has also become apparent. Just think that the MetaBirkins of the Californian artist have been the subject of imitation and sale, even exceeding the price of Rothschild’s works. It is useful to clarify a very important detail: when a fake is bought through blockchain, you can’t claim your money back, there are no legal authorities that can be appealed to as the transactions are unique and in Crypto Art a black market of fake cryptos has readily blossomed. This has been aided by a number of grey areas of blockchain technology still not recognised by the banks and, due to its currency, Ethereum, non-refundable and with digital wallets not affiliated to precise legal identities. And in the absence of relevant regulation, these fakes should be considered legit fakes, exploiting the non-registrability of the brand.
Returning, however, to the heart of the Hermès Vs Mason Rothschild matter and waiting for a judgment by the court, the uncertainty steers in another direction. From an artistic point of view, since it is an artist, an art fair and digital works that we are dealing with, how should the MetaBirkins be interpreted? Counterfeiting, imitation, the theft of intellectual property?
The same Rothschild a few weeks ago published a number of posts on Instagram that invite reflection, citing the works of Barbara Segal and CJ Hendry in whose works the iconic Hermès bag has often made an appearance. The case of the American sculptress involves a substantial critique – references to Chanel and to Louis Vuitton also appear in her production – of the totems, the it bags that are considered as icons of a disruptive consumerism induced by society and by its superstructures. This critique is expressed through her works which reproduce the most famous bags of the French maisons in precious materials such as marble and alabaster.
The second artist mentioned by Rothschild is CJ Hendry, talented and known for her hyper-realistic drawings that depict, on a large scale, known luxury objects and who has even “destroyed” a piece of work depicting Warhol and Basquiat, drawn from a famous shot of Michael Halsband and all of it filmed as an NFT.
On the Mason Rothschild case, Hermès also states that the bags designed by the artist, despite featuring coloured faux fur, continue to recognisably use the characteristics of the Birkin, which is why the company argues that the title of ‘artist’ would not grant him a licence to ‘use its features in a calculated manner, to trick the consumer and to undermine the ability of those signs used to identify Hermès as a singular source of products sold only under the ‘Birkin’ trademark.
True, right? Actually, no. The problem of counterfeits in the metaverse is increasing – also due to platforms such as Roblox, without any legal liability with regard to its contents – however, the Hermès Birkin is registered and protected as a leather bag, with all the value linked to artisan work, to the materials chosen and used to create it and to the scarcity and exclusivity of the product but it is not protected as an image. Quite a problem actually. A problem which, it seems, the US Patent and Trademark Office is trying to resolve through legislation relating to the design and that ‘does not require that a physical screen should be viewable or another tangible item’. But wait a minute: the NFT isn’t actually an image but rather a series of metadata that indicate an image.
The semantic level is quite different. Therefore, if the use of the Hermès brand to sell an NFT is obviously a legal breach, given the fact that Hermès does not have a presence in the NFT market, perhaps it might not be considered a counterfeit. So what will artists do? Undoubtedly, this case will be considered as a precedent.
But is Rothschild a counterfeiter? Has he sought to trick the public, buyers and collectors? Did he really not think that his works would resemble the iconic Hermès bags? Andy Warhol with his ‘Campbell’s Soup’ invited reflection on what was happening and changing in the world of the economic boom and was met with clamour; legend even has it that the original idea wasn’t even his but rather that of a friend of his. Today what is probably irritating Hermès and making the big luxury brands tremble is the fear of losing shares of the market, an extremely profitable one at that. If a Hermès product possesses certain actual characteristics, in the dimension of intellectual and artistic creation, these limits appear not to exist. Many ‘tributes to’ artists and previous works have entered the market without triggering legal battles. In the case in question, perhaps it is more the ego of the brands that is on a war footing rather than the creative context. Mason Rothschild’s MetaBirkins are clearly not actual Hermès Birkins and not only because they are NFT but rather because they were admittedly created with provocative and ironic intent and are not able either deliberately or unintentionally to replace the iconic Hermès product.
‘Imitation is the sincerest form of flattery’, claimed Charles Caleb Colton and this is still undoubtedly the case, but what happens in Art is sublimation, it is symbolic narration of society and of its changes, it is the emerging of problems that are often still to come with respect to what is happening hic et nunc. The virtual world, this time, has highlighted the problems of reality that sooner or later the legislation must address for the purposes of protection. But in the MetaBirkins case, is it the design idea of the French house that is at risk? Or are we just witnessing a gimmick in which an amusing, ironic and provocative image is not really accompanied by any sensory and intellectual vision and richness? Is Rothschild’s work a discovery or a gimmick? True collectors, true connoisseurs of Art and experts on its laws know that the commercial value of a piece of work does not correspond to its actual and ideal value; the same can be said for a luxury object that is accompanied by other non-tangible elements, exactly like an NFT.
Undoubtedly, the future is here. Art and companies need to understand and be receptive to this universe also, but with the courage of one who knows how to explore, to fully understand the vision of an artist and not the risk of a mere marketing venture. Experimentation, to be precious, to embrace reality and the metaverse, must go beyond the boundaries of art as they are conventionally perceived before others realise it but to do so it must never overlook the value of the brand identity, never mistake truth for marketing. What will happen between Hermès and Mason Rothschild?
At this point, it isn’t actually that important because it won’t be the Canadian artist that will change a process bigger than he is and neither will Hermès change the rules of the digital universe. One thing is sure. The opening up of the legislation that will guarantee certain protections in the field of meta reality will definitely come.
Despite this, whatever the aspects that are more intrinsic to the characteristics of the Hermès Vs. Rothschild case highlight, something quite different is the point for discussion: if we reason in terms of intellectual heritage, then yes, the Hermès Birkin Bag is inviolable and should be protected for its historic, creative and symbolic value and the damage being done to it should be halted. On the fact that Rothschild has simply borrowed an image, this cannot be denied, but he hasn’t mocked its image but rather has shown its unchanged importance. Mason Rothschild will not be the new Andy Warhol, he has not prompted any true philosophical reflection, and anyone who understands the meaning of Art, its true significance, may not be attracted by the MetaBirkins. The rest, is gossip!
Testo/ text di/ by Azzurra Immediato, Foto/ photo di/ by Fabio Ricciardiello