In December 2018 there were a number if press reports that detailed that legal representatives for the grunge band Nirvana were suing fashion brand Marc Jacobs for copyright infringement, primarily for using an iconic wobbly yellow and black smiley face design. The brand recently released the Bootleg Grunge T-shirt and sweatshirt as a part of its overall ‘ Redux Grunge’ grunge-inspired collection and seemingly acknowledges the ‘inspiration’ for the T-shirt the tee with reference to a reissued design from 1993 initially created by Perry Ellis. At the time of those reports the T-shirt and sweatshirt are still being sold on Marc Jacob’s website and across retailers.
Now Marc Jacobs is seeking to have the copyright infringement case dismissed; Jacobs questions whether Nirvana LLC even owns the copyright in the happy face illustration that was created by Kurt Cobain. It then argues that – while its happy face t-shirts are clearly influenced by the iconic Nirvana merchandise, the imagery on its garments is sufficiently different to not constitute copyright infringement. Jacob’s also notes that its products don’t include the text “flower-sniffin, kitty-pettin, baby-kissin corporate rock whores” which was on the back of the band’s original shirts. And where the Nirvana t-shirts bore the band’s name, Jacobs’ say ‘Heaven’, albeit in a very similar font.
“[The original image filed with the US Copyright Office] includes the word ‘Nirvana’. The accused products do not. The [registration] includes the ‘flower sniffin’ writing. The accused products do not. The [registration] includes a smiley face with Xs as eyes. The accused products do not; they use a different letter for each eye, the letters M and J, signifying Marc Jacobs”.
So the Marc Jacobs defence appears to be that whilst their T-shirts are ‘Nirvana-esque’ – they are not copies: Inspiration, not appropriation. The designer’s motion for dismissal acknowledges the designs as “inspired by vintage Nirvana concert T-shirts from the 1990s,” but also contests that he “reinterpreted the design to incorporate
Marc Jacobs branding element into an otherwise commonplace image”.
“The only similarity between what is covered by the [registration] and the artwork contained on the accused products ….. is the use of a substantially circular outline for the smiley face and a squiggly line used for a mouth, with a tongue sticking out”.
Lawyers for Jacobs also stress that, not only was it Cobain who actually created the original image, but that his widow and daughter approved of the fashion firm’s creation. It says: “As friends of the brand, Ms [Courtney] Love and Ms [Frances Bean] Cobain helped celebrate the release of the collection”.