Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On on the intriguing case. engages novel issues of trademark infringement, trademark dilution, and cybersquatting (MetaBirkin.com domain name in this case) by artists in the metaverse.

Rothschild that depicted the Hermès Birkin bag in digital fur instead of leather, seemingly present in luxury handbags. The NFTs were on every further sale. After Hermès took down the NFTs from OpenSea, Rothschild moved to a different marketplace and “MetaBirkin” on Discord. Rothschild argued that “” and that the NFTs were a “” under First Amendment protection. Essentially, he argued that “MetaBirkins” were .

The jury found that Rothschild’s “MetaBirkin” NFTs . The key issue was whether the “MetaBirkin” was artistic expression under First Amendment protection, or a commercial product that causes consumer confusion. The jury concluded that while artistic expression was present, Rothschild intended to confuse consumers.

During the trial, Hermès provided evidence of actual consumer confusion which included about if “MetaBirkins” were connected to Hermès. Rothschild rejected these claims by providing that he to his website clarifying that the “MetaBirkins” were not connected with Hermès in any way and that his .

The jury was also influenced by Judge Rakoff’s reasons to deny the motion for summary judgment, and his exclusion of expert testimony. Judge Rakoff held that the test for artistic works applies where the key inquiry is This test was applied as opposed to the test, . Thus, Judge Rakoff held that the artistic relevance was present. Blake Gopnik provided expert testimony that Rothschild brought forth in this case. Had this been admitted, the jury ; thus aligning them in the artistic expression context.

Following the decision, Rothschild’s legal team that the dispute is “.” The team also pointed out Hermès’ hypocrisy as a luxury fashion brand who claim they care about artists but “.” This case has been followed by many to observe how the court resolves the issue of NFTs using intellectual property for the purpose of artistic expression. It is unknown whether this decision stands as precedent since intellectual property right disputes are significantly context-based. After this decision, artists can only conclude for certain the importance of obtaining legal advice before using IP in their NFTs, even if it is in the name of artistic expression.

The post Bad Day For Artists! Updates To The Hermès v Rothschild Dispute appeared first on IPOsgoode.

Emily Papsin is the Co-Editor in Chief of the Obiter Dicta and a JD Candidate at Osgoode Hall Law School.

Growing up, Luke didn’t feel Indigenous at all. Most of his family lived on or near the reserve on Scugog Island quite close to Lindsay, Ontario, where he was born. “We’d go out to res very often, but it never felt like an Indigenous community, it was just my family,” he tells me as we sit on opposite sides of a picnic bench on a cold November morning in front of his studio in downtown Kitchener. Luke and his sister are members of the Mississaugas of Scugog Island First Nation, but only started to take reconnecting to their culture seriously about five years ago. “[In] Kitchener, honestly, we’re pretty invisible,” he says of the Indigenous population nearby, “unless you attended a local university, it’s hard for young Indigenous people to connect.” He found other Indigenous people his age mostly by fluke, through his fledgling art career, and through a one-off, local Indigenous-only archaeological digging job. Since then, he and his sister have been on a journey of reclaiming their culture and sorting through all that was lost.

We discuss a familiar history that explains how his Indigeneity fell into the background.  Luke and his sister are only learning their traditions later in life, as they never got the chance to learn them any earlier. “I don’t blame anyone for how we were raised. My parents were loving and supportive, but it’s tough, the intergenerational trauma is a tough thing” he tells me as an explanation for his lack of exposure. Luke’s tone has a gentle bluntness about it that lacks any resentment while discussing realities that would no doubt inspire an understandable amount. 

The push towards his own identity is tough to nail down, but from what I understood, it started with a bear. Luke has been an artist since high school, but never had a style of his own. He had been exposed to art through his father, and because of other well-known Indigenous artists like Norval Morrisseau, but he still felt insecure that the only reason he was doing art was the fact that he was decent at it. The deeper meaning, that at least colloquially, most artists seem to need was lacking in his work. That changed, however, when he drew for the first time with his culture in mind as his inspiration. He decided to draw a bear, and now he tells me that “bears come up a lot in my art now, and that definitely means something.” He describes the feeling that most people look for when they’ve decided to take a leap, and realize with immense relief that their wings are properly attached. “It was […] this overwhelming feeling of ‘this is what I should be doing, and this is who I am and it’s something I have been suppressing for most of my life.’”

I asked him about that suppression, and whether or not it was conscious. He said it wasn’t something he had done actively, and that instead it stemmed from a lack of exposure, and the internalization of his identity. It is hard to actively suppress something that isn’t even part of your self-concept. Luke explains that aside from his family, he didn’t know a single Indigenous person. “In terms of my Indigeneity, I knew it existed, but it was rooted on Scugog Island with the rest of my family, and it wasn’t here.” He says this with the same gentleness that I realize is a hallmark of his Indigenous rediscovery, too. Lacking from our conversation was any sense that he could have done or known any better. There is simply a sense of prevailing satisfaction and acceptance at the fact he has gotten to where he is.

As we spoke, Luke touched on facets of reclaiming Indigeneity that I hadn’t heard anyone speak about before. He said that his father struggles with learning how to feel worthy of reclaiming the Indigenous culture he had lost. I was surprised, but in hindsight, that was probably naïve. I asked if this sense of unworthiness was common when reconnecting to Indigenous roots. “I think for all of us there is [that sense of unworthiness]. It’s tough, this stigma, that if you don’t look or talk a certain way then you’re not Indigenous. […] there’s an insecurity that we don’t belong in this community.” Thankfully, he followed that with the acknowledgement of that being more of a perception, than a reality. “The more we interact with the community, the more we realize that’s not the case.”

Public Perception 

Luke says that he is “shocked at how well-received [his art] is.” This is true of both the broader Indigenous and non-Indigenous community, and the relatively conservative Germanic community that makes up the majority of Kitchener-Waterloo. The reason behind his art’s accessibility is a simple one; “one thing that I set out to do in my art was to make it clear that I was learning, which I think is super relatable for people in the wider Indigenous community.” Still, as his online presence grew, he felt an immense pressure on himself to be “more Indigenous than [he was], and to know more than [he does].” Those competing pressures of that feeling of unworthiness juxtaposed with the need to represent something that he is still discovering for himself could be debilitating, but Luke is optimistic. He tells me that generally, people seem to see what he is doing, and appreciate it.

Future Outlook

Luke admits he’s not much of a planner. He went from basically not having a career, to doing lots of work in a short amount of time. Kitchener has given him a fair amount of work in spite of the city’s general hesitancy about him early in his career. That is especially true since the city figured out that the pandemic wasn’t going to stop all public art from being possible. A quick lap around the city’s downtown will show you a mural of a crane the size of a school bus, and a series of colourful animals painted onto the sidewalk that are hard to miss. While he admits he is still early on in his career, and he has yet to choose what his favourite things to do are, some of his preferences are clear. Public art and murals are a favourite. “Original acrylic paintings on canvas? Not my thing!”

As for bigger goals, Luke wants to “create an Indigenous art community even just within the city.” He makes special mention of a space for Indigenous queer artists as well, in that “if I don’t feel like there’s space for me, they certainly don’t.” It’s also not all positive. A few years ago, he and some other Indigenous artists tried to coordinate a space for their community through art gallery curators, business owners, and local representatives, but that had a “rather dramatic ending.” Luke’s answer to that is that they’re just going to do it themselves. He is realistic about the resistance of the city to change, but still finds a way to be kind. “There are good people in the city. The system is against us, but not necessarily the people within the system.”

As our conversation wound down, I asked him why he thought art was the way forward. He answered that it all comes down to representation, and that when he was growing up, a huge part of why he didn’t feel Indigenous is that he just didn’t see it anywhere. “I feel like it’s such a special thing for me to be able to create public art that is so clearly Indigenous, for maybe those kids here that feel the same way. That, oh, there’s other people like me, and that’s something I can be proud of.”

Luke’s art can be found at  or on Instagram .

The post An Interview with Anishinaabe Artist, Luke Swinson: Reclaiming, re-discovering, and reviving his culture, one illustration at a time appeared first on IPOsgoode.

The filed by the artists alleges, among other things, that the honour and reputation of the artists will be damaged if 5Pointz is destroyed or modified. To those who are familiar with copyright actions, this is a fairly classic moral rights argument. However, unlike countries such as Canada, France and Germany, the US does not provide authors of all copyright protected works with moral rights: only limited moral rights protection to creators of works of visual art under the .

VARA gives the author of a work of visual art two separate rights, although the two rights are somewhat conflated in the statement of claim.

The author of a work of visual art has the right

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

The first right allows the artists to prevent the distortion or mutilation of works that will be detrimental to the artists’ reputations. The initial debate is therefore likely to turn on whether the destruction of the buildings, or even a portion thereof, containing the aerosol artists’ work will be prejudicial to each artist’s honour or reputation. Early decisions in Canada were reluctant to hold that the destruction of a work qualifies as “distortion, mutilation or other modification” or even that it is prejudicial to an artist’s reputation:^[1] once a work is out of sight, it is generally out of mind.^[2] But subsequent reforms to the deem if the work being distorted, mutilated or otherwise modified is a painting. Unlike the Copyright Act, VARA contains no similar deeming provision for paintings. The artists must therefore prove prejudice to their reputations.

In this case, 5Pointz is world famous and extensively photographed, and so the aerosol artists’ reputation may not suffer from the destruction. If anything, the destruction of the property may actually drive up the value of the artist’s reputation by limiting the number of people who have ever had a work on the site. After all, art loves scarcity.

The second right provides the artists with the ability to prevent the complete destruction of their works if it can be demonstrated that the works are of a recognized stature. However, recognized stature is not defined in the statute. Given the fame of 5Pointz the artists may be able to show that their works are well recognized and have legitimate stature in the art world. The multi-million dollar successes of street artists such as and demonstrate how large a space graffiti have firmly established in mainstream art culture. If the owners of a museum were intending to destroy a one-of-a-kind painting, similar arguments could be raised. Why should works painted on brick by aerosol be given any less legal protection than works painted on canvas by brush?

In the leading US case^[4] on the application of VARA to graffiti the court held that public policy reasons should prevent graffiti artists from asserting moral rights over works added to another’s property illegally or without consent. But what makes this case unusual is that all of the graffiti at 5Pointz were apparently done legally with the knowledge and consent of the buildings’ owner. Moral rights to graffiti works done with consent appear to be untested in US courts.

For artists and legal professionals, the lesson here is that moral rights can turn up in unlikely places and it is unwise to ignore them. In Canada, the grants authors, including visual artists, . However, the limits of these rights are largely untested, particularly as they relate to aerosol artists. The outcome of the 5Pointz action may therefore assist the development of Canadian law in this area.

For the time being, the 5Pointz lawyers have that the plaintiffs have been granted a temporary restraining order and are waiting to learn if they will be granted a hearing for a preliminary injunction. IP Osgoode will maintain a watching brief on developments.

The post A Moral Right to Graffiti? appeared first on IPOsgoode.