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Fashion firm hits back at Nirvana’s lawsuit over grunge clothing range

By | Published on Wednesday 13 March 2019

Marc Jaconbs Nirvana t-shirt

The fashion designer who was sued by Nirvana over his company’s Redux Grunge collection – which included t-shirts with a Nirvana-esque graphic on them – has hit back in a court filing that seeks to have the copyright infringement case dismissed.

Last year’s grungy clothing line from the Marc Jacobs fashion business included t-shirts bearing a version of the wobbly smiley face image that was a staple of Nirvana’s merch back in the band’s hey-day. The company that now controls Nirvana’s intellectual property rights then sued in December, accusing Jacobs of infringing the band’s copyright in the image.

Responding to said litigation, 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 merch from back in the day – the imagery on its garments is sufficiently different to not constitute copyright infringement.

Also, its products don’t include the text – “flower-sniffin, kitty-pettin, baby-kissin corporate rock whores” – that 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.

Says the legal filing: “[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”.

“The only similarity between what is covered by the [registration] and the artwork contained on the accused products”, it then concludes, “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”.

Of course Nirvana might argue that the substantially circular outline and the accompanying squiggly line used for a mouth, with a tongue sticking out, are the core elements of the band’s original design. But does copyright protection still apply with the other elements missing?

Elsewhere in the new legal filing, lawyers for Jacobs are also keen to 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”.

The Nirvana company is yet to respond to the fashion company’s filing.