On December 28th, 2018 the surviving members of the ‘90s grunge band Nirvana filed a copyright infringement suit against the fashion brand Marc Jacobs International, as well as the retailers Saks Fifth Avenue and Neiman Marcus, for infringement of the band’s famous “smiley face” logo. From Michelle Kaminsky writing in Forbes:
According to the complaint, the late Kurt Cobain created the iconic logo in 1991 and “Nirvana has used that copyright-protected design and logo continuously since 1992 to identify its music.” The band claims that because of the goodwill the logo has come to symbolize, it also enjoys trademark protection as “a significant portion of the consuming public assumes that all goods or services that bear the logo are endorsed by or associated with Nirvana.”
Here’s a comparison of the original logo with the Jacobs design.
Other articles of clothing with the logo are part of Jacobs’s “Bootleg Redux Grunge Collection,” and the advertising campaign for the line contains frequent references to Nirvana’s work, including “This bootleg [product] smells like teen spirit.”
The suit alleges that the defendants “have reproduced, publicly displayed, distributed, and created unauthorized derivatives of Nirvana’s copyrighted work.” The statute referenced with respect to this violation (17 USC § 106) states “the owner of copyright…has the exclusive rights to do and authorize [the preparation of] derivative works” with derivative works defined as:
a work based upon one or more preexisting works, such as a[n]…art reproduction…or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
While this definition of “derivative work” does make the case against Jacobs appear to be strong, it also represents a policy failure. The Nirvana logo itself is a grungy derivative (though not a “derivative work” in the legal sense) of the ubiquitous smiley face.
Indeed, while Jacobs may be illegally infringing on Nirvana’s copyright, the harm caused by the infringement is not obvious, though the complaint alleges Nirvana is suffering “irreparable harm.”
Why? Nirvana alleges that “minor differences [are] unlikely to be noticed by the consuming public.”
This claim is laughable. There are two notable changes to the design that anyone familiar with the band (the design says “heaven” where the band name should be) would recognize.
The band may have a legitimate gripe with respect to the argument that assumption of Nirvana’s endorsement, “through that extensive use, that design and logo has come to symbolize the goodwill associated with Nirvana to a significant portion of the consuming public.”
But by filing this suit, they’ve made their dissatisfaction clear. A press release or tweet could have cleared up the confusion. Indeed, grunge culture is heavily associated with more left-leaning themes, such as support for authenticity and opposition to big business.
But by looking for their cut of the loot in the form of “significant damages not presently known with certainty,” Nirvana join the ranks of other large firms looking to line their pockets with economic rents.