Andy Warhol Art Expert Excluded From Hermès-MetaBirkin NFT Trial - Bloomberg Law

Andy Warhol Art Expert Excluded From Hermès-MetaBirkin NFT Trial – Bloomberg Law

The digital artist behind “MetaBirkin” nonfungible tokens can’t present testimony from an art critic who studies the work of Andy Warhol, Judge Jed S. Rakoff ruled on the first day of a novel trademark trial involving Hermès International SA.

That may ultimately doom Mason Rothschild’s ability to compare his NFTs to the famous art created by Warhol, like his silk-screen prints of Campbell’s soup cans, Rakoff said Monday in the Southern District of New York. Rakoff granted, without detailed discussion, Hermès bid to exclude testimony from famed art critic Blake Gopnik.

The judge said Gopnik, an expert witness supporting Rothschild’s contention that his NFTs are protected artistic expression, would have been the only person who could introduce the analogy between Warhol and Rothschild’s art.

MetaBirkins fell within the “Business Art” practice that Warhol pioneered, according to Gopnik’s pre-trial testimony. Gopnik authored “Warhol,” a 2020 biography of the artist.

Hermès is arguing that Rothschild’s NFTs infringe on the fashion house’s trademark rights to the famous Birkin handbag. His use of the Birkin name to sell and advertise the NFTs on website domain names and social media handles has caused consumers to incorrectly believe the project is endorsed by Hermès.

The MetaBirkin NFTs, which are bought and sold using blockchain technology, link to digital images of Birkin