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Marc Jacobs pushes back again in its t-shirt dispute with Nirvana LLC
By Chris Cooke | Published on Thursday 28 November 2019
Fashion firm Marc Jacobs has newly submitted a flurry of arguments as to why it didn’t infringe the intellectual property rights of Nirvana by selling a t-shirt that featured a version of the wobbly face image that was a staple of the band’s merch back in the day.
Nirvana LLC, which controls many of the band’s IP rights, sued the Marc Jacobs company over its wobbly face t-shirt last December. Marc Jacobs then hit back with a motion to have the case dismissed in March, primarily arguing that there were enough differences between its t-shirt and the old Nirvana t-shirt to dismiss any claim of copyright infringement.
Earlier this month the judge overseeing the case ruled that that argument was “unpersuasive”, adding that “a review of the images confirms that the allegation as to substantial similarity is sufficient”. Therefore the motion to dismiss was denied and Nirvana LLC’s case allowed to proceed.
Which is why Marc Jacobs has now filed some new documents with the courts honing in on some of its other arguments as to why there is no case for infringement. These include copyright and trademark law technicalities, a debate over who actually created the original wobbly face image and whether ownership of it really did end up with Nirvana LLC.
On the former, legal reps for the fashion outfit cite various rules and practices of the US Copyright Office which, they say, confirm that Nirvana’s wobbly face image does not meet the requirements to be protected by copyright in the first place. They also note that the US Patent And Trademark Office refused to register the logo as recently as last summer.
As for who created and who owns the image in question, the legal filing from Marc Jacobs argues that Nirvana LLC has failed to demonstrate that Kurt Cobain drew the wobbly face, as has been claimed, nor that rights in the drawing passed to the band’s company through either explicit or implicit agreement.
The filing states that the claim Cobain created the image and passed ownership of it to Nirvana LLC “finds no support in the sworn testimony of David Grohl and Krist Novoselic, the two surviving members of the band Nirvana, who could not identify the creator of the disputed work”.
It then adds that “the apparent absence of any living person with first-hand knowledge of the creation of the allegedly copyrighted work in question”, coupled with the issues over whether or not the image should even enjoy copyright protection, are why Marc Jacobs should not be held liable for any infringement.
Just in case that doesn’t work, the Marc Jacobs company also reminds the court that it had been in talks with Courtney Love about its Nirvana honouring t-shirt, and she – via another corporate entity – is a shareholder in Nirvana LLC. Love’s interest in collaborating on the product was a “reasonable interpretation of acquiescence”, the fashion firm reckons.
We now await to see how Nirvana LLC responds to the latest round of arguments from the Marc Jacobs camp.
