You wouldn’t steal a handbag.

Is copyright ‘piracy’ really a crime or can brands embrace the bootleggers?
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You wouldn’t steal a handbag.

If for some reason you felt your life was lacking a colourful, faux-fur Birkin bag put together with pixels, Mason Rothschild had you covered with his NFT collection ‘metabirkins’. 

Well, that was until Hermès took him to court to protect their iconic little bag, laughed off his first amendment rights, and won. Clearly Mason, despite being a Millenial who almost certainly contemplated whether he would steal a handbag whenever he sat down to watch The Matrix, The Fast & The Furious or whatever pirate-favourite blockbusters he was into back in the noughties, decided he didn’t share the view that Piracy. It’s a crime.

In the month since the settlement in February, many have talked about this as a watershed moment for copyright law and digital authenticity. A win for brands and a blow to the IP thieves getting rich off others’ hard work. Web 3.0, like any technological innovation in its relative infancy, inevitably goes through a period of lawlessness. But those early days also tend to be characterised by collaboration and rich creative expression, with myriad projects springing up and capturing the imagination of their communities. Sure, opensea is now awash with generic, low effort projects pumped out in the hope of making a quick profit. The most successful among them though, high ETH price tags aside, climbed to the top in no small part due to the fact they were able to capture the imagination of the communities they were designed for and by. If the primary use case for NFTs is as a preserver of digital authenticity, we need to not lose sight of the value of the distinctly fungible element of the format – the creativity.

It’s here that one of the more interesting questions of this whole saga lies. Is there more value in an authentic, digital token from Hermès or in someone like Mason Rothschild’s creative interpretation of the brand and its product? 

Bootlegging has played a key role in countless cultural innovations throughout history. Uncleared samples have brought us completely new genres of music. The appropriation of cultural iconography by the likes of Warhol, Pauline Boty or Robert Rauschenberg gave us a whole new genre of art. It would be bold to compare these cultural movements to digital handbags on artistic merit, but who's to say what’s ‘transformative’ enough that no copyright was harmed in its making?

There are myriad examples of copyright hi-jacks that are incredibly successful, either because they convey a whole new meaning from their source material or they spot something culturally interesting that only true fans could. It could be a flipped sample, an upside down swoosh or some niche cultural reference made real that the rights owners, blinkered in their focus on mass appeal and mass revenue generation, would either never spot or almost certainly never prioritise. 

Funnily enough, following the lawsuit against Mason in February, we immediately saw another attempt to shut down a creator playing fast and loose with the Birkin brand. This time, it was Xylk Lorena, the Pinoy designer whose wildly successful Grocery Bag plastered images of the luxury fashion house’s iconic handbags onto traditional Filipino grocery totes. A simple idea, executed in such a way that captured the imagination of a huge audience and provided a more accessible and fun way into ‘owning’ a Birkin. Is this a use case that warrants the legal safety of ‘transformative’ artistic freedom? Apparently not, as Xylk was met with instagram and Shopify takedowns and continues to fight those trying to put a limit on his creativity.

“This is Hip Hop. This is sampling. All these luxury labels get mad at people like me. Like, get with the times. We’re in the meme era.” - Xylk Lorena

This kind of bootlegging is by no means just reserved for luxury fashion. Pirate merch like Simpsons’ megafans PET SHOP or arsenal fanzine eighteen86 are so laser focused in delivering products that will excite and inspire their respective fandoms because they are a true labour of love. They’ve been hit with countless cease and desists by the rights holders who see them as criminals, not fans serving their communities or, better still, potential creative collaborators who could help them reconnect with their audiences.

As technology like generative AI makes it easier than ever for anyone to realise whatever idea might pop into their heads, this kind of behaviour is only set to evolve and we’re already seeing brands and their IP weave into these new creations. Just look at the Tiffany x Nike collab that everyone found so underwhelming, where the community were quick to share new visions for where that product could’ve gone instead.

It will always be a more difficult question when money’s involved, but the first reaction of brands to these copyright violations, which are that much easier to build and disseminate in the digital realm, shouldn't be to shut it down. There's value in what some of these 'pirates' are doing for brands, even if they appear on the surface to be eating into the margins, and there are opportunities for brands to embrace it and bring the bootleggers into the fold and engage their community in co-creating the evolution of brand and product.

So back to that question on the meta birkins. That’s for the community to decide.