12 March 2019 | Ben Beaumont-Thomas | The Guardian
Lawyers for fashion designer Marc Jacobs have filed a motion to dismiss the lawsuit made against him by the estate of the band Nirvana, which accuses him of copyright infringement.
The designer’s Redux Grunge collection features a cartoon “smiley face” similar to the one used by Nirvana as their logo, along with the word “Heaven” printed in the distinctive serif typeface used by the band.
The lawsuit, filed in early January, argues that Jacobs intentionally used “Nirvana’s copyrighted image on and to promote its products” in an “oppressive, fraudulent and malicious” manner. It argued for monetary damages and for the clothes to be removed from sale.
Jacobs’ motion for dismissal admits the designs were “inspired by vintage Nirvana concert T-shirts from the 1990s”, but argues that Jacobs “reinterpreted the design to incorporate [a Marc Jacobs] branding element into an otherwise commonplace image”.
The motion centres on a technicality: while Nirvana do own copyright to similar artwork, it is for an entire T-shirt design with a smiley face, the word Nirvana, and the words “flower sniffin kitty pettin baby kissin corporate rock whores” written on the back.
By replacing the smiley face’s crosses for eyes with the letters M and J, and the word Nirvana with Heaven, Jacobs’ motion argues that the design therefore does not infringe copyright as it is not an exact replica of the copyrighted Nirvana design.
The motion also argues that the Nirvana estate may not even legally own the logo, penned by frontman Kurt Cobain before his death in 1994.
It says the lawsuit “contains no explanation, or even unsupported conclusions, regarding how or whether Mr Cobain transferred his rights in the X-Eye Smiley Face to the author/copyright claimant listed”.
It argues that other references to Nirvana songs made on the Marc Jacobs website – and included in the lawsuit – are “red herrings … not tethered to any actual rights plaintiff claims to have”, and notes that Jacobs has long used smiley face designs in his work.
Both Courtney Love, the widow of Cobain, and their daughter Frances Bean Cobain have featured in advertising for Marc Jacobs. The Nirvana estate making the complaint is co-owned by the pair and former band members Dave Grohl and Krist Novoselic. The estate has not commented on the motion for dismissal.