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Hermès International v. Rothschild, U.S. District Court for the Southern District of New York, No. 1:22-cv-00384 (Feb. 8, 2023).

In a landmark NFT case, a Manhattan jury held that the digital creations developed by Mason Rothschild (also known as Sonny Estival) and titled “MetaBirkins” infringed on Hermès trademark rights on its Birkin bag. The jury found Rothschild liable for trademark infringement, dilution, and cybersquatting, as well as that “MetaBirkins” could not be considered protected speech under the First Amendment. Hermès claimed that Rothschild’s NFTs would create confusion between the art and its brand to the average consumer, and it also claimed that his release of Birkin-related NFTs hindered their own plans to foray into the digital world. Rothschild countered Hermès’ argument by claiming that his work was transformative and not explicitly misleading, under the “Rogers” legal standard. (See Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989).) Unfortunately, Rothschild’s arguments were insufficient to convince the nine jury members, who awarded Hermès $133,000 in damages. Rothschild, in a post-verdict statement, said “A multibillion-dollar luxury fashion house who says they ‘care’ about art and artists but feel they have the right to choose what art IS and who IS an artist. … This is far from over.” Read Hermès’ amended complaint HERE and Rothschild’s motion to dismiss HERE.

303 Creative LLC v. Elenis, 212 L. Ed. 2d 6, 142 S. Ct. 1106 (2022).

On December 5, 2022, the Supreme Court heard arguments to determine whether a graphic designer, specializing in website design, may claim that her web creations are art and therefore protected speech under the First Amendment. Lorie Smith, of 303 Creative LLC, is a website designer based out of Colorado, which has a law prohibiting discrimination against customers based on sexual orientation. However, Smith wants to design websites solely for heterosexual couples. She claims that her websites are artistic creations and compelling her to design websites for customers she does not wish to serve violates her First Amendment rights. The Court must consider whether a website is sufficiently artistic to merit the protections afforded by the First Amendment, or whether it is a functional service and must therefore be held to public accommodation laws. Analysts of the Supreme Court believe that the Court is leaning towards holding that a website is considered art. A decision is expected by July 2023. Read Petitioner 303 Creative’s brief HERE and Respondent Elenis’ brief HERE.


Kerson v. Vermont Law School, No. 5:20-cv-202 (D. Vermont, Oct. 20, 2021).

A resolution was reached in the case between Samuel Kerson and the Vermont Law School regarding the murals Kerson painted at the law school. The law school proposed removing or covering up the panels after the students protested the murals, depicting the history of slavery and the Underground Railroad. The school first asked Kerson if he would like to take the murals back, but the result was this suit. The primary issue was whether VARA prohibited the “permanent concealment of a work of art.” The court ruled in favor of Vermont Law School, holding that placement of acoustic panels over the surface of the two murals would not modify them, that environmental change also does not modify or “destroy” the murals, and that concealment is not a form of “destruction.” Read more HERE.


Transcript of Oral Argument, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (21-869).

Beginning in 2016 as a result of the Andy Warhol Foundation licensing an image, taken by Lynn Goldsmith, of Prince to Condé Nast following the musician’s death,  Goldsmith asserted that she only licensed the photograph for one-time use to Warhol. In turn, the foundation sued Goldsmith, claiming the Warhol alterations to her photograph should be considered fair use. Awaiting a holding from the Supreme Court, the art community is concerned with what this will mean for other works that have found  inspiration from works by other artists. The decision can alter what is considered to be permissible under the fair use principle of the Copyright Act. Read the Oral Arguments HERE.


Jack Flora, et al. vs Prisma Labs, Inc. § 5:23-CV-00680

In a class action suit, plaintiffs bring suit against Prisma Lab  with regard to the  “Lensa” app. The Lensa app includes a feature that allows the creation of a “magic avatar”, an AI model of a collection of photos submitted by the user. The plaintiffs are suing as a result of Prisma Labs collecting, using, storing and profiting from the biometric identifiers used in the Lensa app, directly violating the Illinois Biometric Information and Privacy Act, which restricts the collection and use of biometric data. The plaintiffs contend that, in allowing the Lensa app access to their photos to create a “magic avatar”, the app takes their facial data without the users’ consent. Read the Complaint HERE.

Vincent Sicre de Fontbrune, et al v. Alan Wolfsy, et al., No. 19-16913 (9th Cir. 2022).

The 2001 French judgment between Yves Sicre De Fontbrune and Alan Wolfsy is being challenged in the United States on the principles of the fair use doctrine of the Copyright Act of 1976. Fontbrune gained intellectual property rights to the “Zervos Catalogue”, a collection that included 16,000 photographs by Christian Zervos of Pablo Picasso’s work in a collection which was published by Cahiers d’Art. Following this acquisition, Alan Wolfsy gained permission to publish a collection called “The Picasso Project”, which included some of the Zervo photographs published in the catalouge. Fontbrune sued Wolfsy for copyright infringement and the French Court of Appeals agreed.  After Wolfsy allegedly infringed on Fontbrune’s copyright for a second time, Fontbrune brought forth the case in California, in an attempt for the US court to recognize the French judgment. Finding that the French holding violated the fair use doctrine and infringed on the first amendment, the California trial court refused to uphold the French determination.  Upon Fontbrune’s appeal, the Ninth Circuit Court remanded the case back to the trial court, holding that the photographs were not transformative and therefore did not comply with the fair use doctrine. Read more HERE


United States v. Bouaziz, U.S. District Court for the Southern District of Florida, No. 22-80099-CR-AMC (Feb. 21, 2023). 

An art dealer in Palm Beach, Florida, pleaded guilty to selling a fake artwork by Andy Warhol amid an extensive FBI investigation. Daniel Elie Bouaziz has been accused of selling numerous forgeries of Andy Warhol, Roy Litchenstein, Keith Haring, Banksy, and Jean-Michel Basquiat. As part of an undercover operation by the FBI Art Crime Team, agents pursued the purchase of a collection of artworks from the dealer, even making  a downpayment in Bitcoin. One of the purported Warhol prints, ‘Superman,” included a stamp from the Carnegie Museum of Art, allegedly placed by the dealer to create false provenance. Another purported Basquiat artwork, which was offered by the dealer for $12 million, was sourced from another auction website for $495. Bouaziz pleaded guilty to one count of money laundering in the sale of fake Warhols, after receiving a down payment of $200,000 from an unnamed buyer. The court has dropped the other 16 counts against the dealer. Read more HERE.