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Ninth Circuit upholds ruling on Nirvana Circles Of Hell copyright dispute
By Chris Cooke | Published on Tuesday 4 July 2023
The US Ninth Circuit Appeals Court has upheld the ruling in a copyright dispute over the circles of hell image famously used on Nirvana’s merchandise since the 1990s. The appeals court concurred that the dispute would be better fought out in a UK court.
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 in 2021 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.
Her lawsuit claimed that Nirvana had been using the image for decades without getting a licence. However, she had only become aware of that fact in early 2021, hence the somewhat late-in-the-day litigation.
In the original judgement on the case, judge Dale S Fischer noted that there was a dispute over who specifically owned the copyright in the circles of hell image.
Meanwhile, because Scott-Giles created the image in the UK, it enjoyed direct protection under UK copyright law, with any enforcement of the rights in the image in the US based on the global treaties that connect the British and American copyright systems. With that in mind, the judge concluded that the ownership dispute would be best resolved in the UK courts.
“A UK court is surely more familiar with and readily able to apply UK law to UK copyright ownership disputes”, the judge ruled, dismissing Bundy’s lawsuit, albeit on the condition that the defendants “submit themselves to the jurisdiction of a UK court” should any legal action be pursued there.
Bundy then appealed. And, according to Law360, during oral arguments earlier this year, her lawyers argued that the two other people who might also have an ownership claim in the copyright in the Scott-Giles image had both submitted declarations confirming they are not asserting any such claim.
However, the Ninth Circuit ruled: “Even though two witnesses have provided declarations disclaiming ownership of a UK copyright interest in the illustration, Bundy has yet to present affirmative evidence proving sole ownership or ownership at all”.
And, the court added, Fischer was right to conclude that the best place to confirm copyright ownership is the country where the work has direct copyright protection.
The appeal judges concluded: “Material evidence and witnesses related to ownership are in the United Kingdom, and ownership is a critical threshold issue that a UK court is more equipped to resolve. Moreover, it is possible for Bundy to enforce a UK judgment in the United States”.
