The results of this case are worth paying attention to.
, the case was being closely watched because it had the potential to clarify how trademark law would apply to NFTs. Rothchild’s lawyer called the result a “terrible day for artists and the First Amendment.”
Hermes positioned Rothschild as a “digital speculator” as part of a “get rich quick” scheme that started in December of 2021 and had by the beginning of the following month ballooned in value to over $1 million. Rothchild’s defense was largely based on pointing to the work of Andy Warhol, specifically his soup cans art which was not authorized by Campbell’s.
The reference to Warhol is particularly notable given a currently pending case involving the artist and fair use,. While there is clearly nuanced difference between the two cases, there are tones of similarity. Warhol’s use of Lynn Goldsmith’s photo of Prince has been the main point of contention, and most copyright experts have agreed that Warhol’s work was not substantially transformative enough to qualify as Fair Use.
One major difference between these two cases is that Hermes indicated that as Rothchild was creating his NFTs, it was also considering a digital art series — an endeavor that Rothchild’s work hindered. Still, court results to this point are consistent. That is, at least so far.
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