(Paris) Against the backdrop of the growing popularity of “NFTs”, these digital files sold in the form of certified unique tokens, brands and artists are battling over issues of copyright and counterfeiting, with colossal sums of money at stake .
Posted at 11:19 a.m.
Revolted by the marketing without permission of NFT of Nike sneakers, the American brand filed a complaint Thursday in New York against the online trading platform StockX, claiming damages.
Last month, luxury group Hermès also sued artist Mason Rothschild, who auctioned off 100 ‘MetaBirkins’, NFTs featuring the house’s famous bag, raising tens of thousands of dollars.
Can these complaints succeed?
At this stage, it is still unclear whether brands can win the battle, especially in the case of Hermès, says lawyer Annabelle Gauberti, who specializes in the creative industries sector.
To defend his “MetaBirkins”, Mason Rothschild relies on the first amendment to the American Constitution, which guarantees freedom of expression and protects artists before the courts of the country.
The “fair use” argument, which grants exceptions to copyright in the case of a parody, for example, often wins in the US or British courts, adds Ms.and Gauberti.
However, she considers that Mr. Rothschild will have difficulty convincing a judge of the artistic merit of his work. “The message it carries is not easy to understand, beyond the desire to raise large sums of money. His legal team is going to have a lot of work,” she quips.
The dispute between Nike and StockX looks like a more classic commercial dispute, the e-commerce platform having never claimed that its NFTs were works of art. It remains to be seen how trademark law can be transposed into a digital world.
Which regime for NFTs?
In a response to Hermès posted on Twitter, Rothschild compares its “MetaBirkins” to Andy Warhol’s famous painting of Campbell’s soup cans.
“The fact that I am selling art using NFTs does not change the fact that it is art,” he defended.
Edward Lee, who directs a program on intellectual property at Chicago-Kent Law School, disagrees with this comparison. In an article published on Bloomberg Law, he explains that the Campbell Soup brand had never expressed its desire to start selling works of art, whereas Hermès could well decide one day to create its own NFT.
The fact that no material works are exchanged during the transactions of these “Non Fungible Tokens” further complicates the possibilities of regulation.
“Many people imagine that the content of NFTs is inside a token – but this is not the case, and for this reason there is no prohibition on reproduction”, underlines Primavera De Filippi, co-author of the book Blockchain and the law, in the magazine Business of Fashion.
Can brands protect themselves?
Hermès asked artist Mason Rothschild to destroy his “MetaBirkins”, which the NFT platform OpenSea agreed to withdraw from sale.
“Even if the brands win their lawsuits, how are they going to sue a consumer who has already purchased an NFT, or prevent them from reselling it at auction? In terms of application, digital is a Wild West”, nuance however Mand Gauberti.
According to her, brands should fight back by creating their own official NFTs. This is what Nike did with the acquisition of RTFKT in December, a company specializing in the design of virtual sneakers.
“Attack is the best defence,” notes Mr.and Gauberti. “But for the moment, these brands are still hesitant (at the idea of creating their NFTs), because their core business remains material products, and they are still observing whether the metaverse will really take off. »