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Nirvana defeat ‘circle of hell’ copyright dispute in the US, but could now face litigation in the UK

By | Published on Monday 25 October 2021


A copyright infringement lawsuit over the circles of hell image famously used on Nirvana’s merchandise since the 1990s has been dismissed, but mainly because a judge in the Californian court where the lawsuit was filed reckons the legal battle would be better fought in the UK courts.

The image in question was seemingly created in the late 1940s by British writer CW Scott-Giles, depicting Upper Hell as described in Dante Alighieri’s ‘The Divine Comedy’. Scott-Giles’ image then appeared in a Dorothy L Sayers’ translation of the fourteenth century poem.

The lawsuit over Nirvana’s use of the image was filed earlier this year by Jocelyn Susan Bundy, who says that she is the sole surviving relative of Scott-Giles, who died in 1982, and therefore the successor-in-title to his copyright. She claims that she only became aware that Nirvana had being using the image without permission since the 1990s at the start of this year, hence her somewhat late-in-the-day litigation.

Bundy’s lawsuit also alleged that Nirvana have in the past attributed the copyright in the image to the band themselves, variously claiming that Kurt Cobain created it and/or that the illustration is in the public domain, ie no longer protected by copyright.

The legal filing then added: “Nirvana and some of the other defendants have maintained this position in their responses to plaintiff’s continuing requests to cease their wrongful conduct in the US and abroad”.

All or any of that might be true, but when considering the case, judge Dale S Fischer said that one key dispute between the parties here relates to specifics around the ownership of the copyright in the circles of hell image.

Meanwhile, both parties agree that the image is directly protected by the UK copyright system, enjoying protection under US copyright law as a ‘foreign work’ via the global copyright treaties.

With that in mind, Fischer concluded, it would be better to pursue the lawsuit in the UK courts, which are better positioned to consider matters of copyright ownership under UK copyright law.

“A UK court is surely more familiar with and readily able to apply UK law to UK copyright ownership disputes”, Fischer stated in a ruling last week.

She also added: “Given that one of the core disputes in this case concerns ownership of the copyright in the illustration, which is governed by UK law, the UK likely has a stronger interest, on balance, in this case”.

Having reached that conclusion, Fischer granted the defence’s motion to dismiss the case, on the condition they “submit themselves to the jurisdiction of a UK court” if Bundy now decides to proceed with her legal claim on this side of the Atlantic.