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Nirvana company files another lawsuit over the band’s smiley face

By Chris Cooke | Published on Friday 13 November 2020

There is now fighting on a second front in what history will surely remember as the War Of The Smiley. Nirvana’s company is suing a former Geffen Records designer who claims he created the band’s iconic smiley face image, after those claims were used as a key defence argument in the band’s ongoing legal dispute with fashion designer Marc Jacobs.

The fashion brand launched a grungy clothing line in 2018 which included a t-shirt clearly influenced by the famous smiley face image used by Nirvana on its merchandise back in the 1990s. That led to a lawsuit from Nirvana LLC, which controls many of the band’s IP rights, accusing Marc Jacobs of copyright infringement.

The fashion firm initially tried to argue that because the smiley face on its t-shirt wasn’t exactly the same to that which appeared on Nirvana t-shirts back in the day, there wasn’t any copyright infringement. But it failed to get the case dismissed based on that argument alone.

So last week the Marc Jacobs company returned to court with a new argument. Nirvana LLC claimed that the late Kurt Cobain created the band’s smiley face image, assigning the copyright in it to the band’s company, thus giving it the rights to sue over the Marc Jacobs t-shirt.

However, the fashion firm argued that it had found a designer who used to work for Nirvana’s label Geffen who said that he had created the image, and had never assigned any rights in it to the band’s company. Therefore, Marc Jacobs argued, no copyrights owned by Nirvana LLC had been infringed and the case should be dismissed.

It actually went further than that, calling for the court to issue sanctions against Nirvana LLC for incorrectly presenting as “fact” in its original legal complaint that Cobain created the allegedly infringed image.

But now Nirvana LLC has launched a separate lawsuit against that former Geffen employee, Robert Fisher, who was an art director with the label. Its beef with Fisher actually goes beyond the Marc Jacobs litigation because, it seems, the designer has been making various claims regarding ownership of the original smiley face image since late last year.

Says the band’s company in its new lawsuit: “25 years after the death of Nirvana band member Kurt Cobain, the person best situated to conclusively refute his recent claims, defendant Robert Fisher claims to own a copyright interest in a ‘smiley face’ design Nirvana first sold as part of ‘happy face’ t-shirts in 1991, which Nirvana registered for copyright in 1993”.

“Merchandise bearing that smiley face design has been the band’s most popular for years”, it adds, “yet in the 29 years since the design’s creation, Fisher never claimed any interest in it”.

“Instead”, it goes on, “in November 2019, Fisher claimed for the first time that he, not Cobain, created the smiley face design, and in the spring of 2020, Fisher for the first time began to claim that he, not Nirvana, owned a copyright in that smiley face design. In August 2020, Fisher filed a copyright registration to that effect and he now asserts that Nirvana has been using the smiley face design for the past almost three decades under an ‘implied’ licence he granted to Nirvana”.

“Fisher claims he will terminate that ‘licence’ effective 1 Jan 2021, and that any further exploitation by Nirvana after that date will infringe his copyright in the smiley face design. Nirvana seeks declaratory relief establishing that its US copyright in the smiley face image and t-shirt design is valid and Fisher’s copyright registration is not”.

So that’s all fun, isn’t it? Later in its lawsuit, Nirvana LLC also says that Geffen itself has always credited Cobain as the creator of the smiley face image and makes no claim to the copyright in it. So that’s good. It’s always nice to have an ally when you’re fighting a war on two fronts.