A long-running legal dispute over the Nirvana ‘smiley face’ logo was back in court yesterday. The former Geffen Records art director who says he created the logo - Robert Fisher - wants another chance to claim ownership of the copyright in it. It's a complicated case that reminds artists and labels about the need to be clear regarding the copyright status of logos and artwork, even when employees are involved in their creation.
This all began as a dispute between Nirvana and fashion designer Marc Jacobs over a 2018 clothing line that included a t-shirt based on the classic design of Nirvana's merchandise, featuring a version of the smiley face. Nirvana’s company, Nirvana LLC, sued for copyright infringement. Then it transpired that Fisher was claiming he owned the rights in the logo.
The judge hearing the case, John A Kronstadt, dismissed Fisher's copyright claim last year. As a result Nirvana LLC now wants its copyright infringement case against Marc Jacobs, which has been dragging for more than five years, to proceed.
However, according to Law360, Fisher's legal rep told the court yesterday that his client should be able to appeal the judgement regarding his copyright claim first. To have a "fair chance to represent himself in this case, he should be able to participate in the trial as a party rather than a witness" and "the only way he can achieve that is if he's allowed to appeal now".
Lawyers representing the Marc Jacobs company agreed. They said that allowing its legal battle with Nirvana LLC to proceed to trial without “someone who might have an ownership right” of relevance participating would be unfair, and would potentially lead to extra complications further down the line.
This case has become complicated because there are actually three elements to it. Who created the smiley face logo? Who owns the copyright in the logo? And whether or not the smiley face on the Marc Jacobs t-shirt was sufficiently similar to the original to constitute infringement.
Nirvana LLC actually claims that Kurt Cobain came up with the smiley face logo and then assigned the rights to his band’s company. If that could be proven, then the only remaining question to be answered relates to the similarity between the two smiley faces.
Then there is Fisher’s claim to have created the logo. Even if that could be proven, there is still a question over copyright ownership, because he would have created the image while he was an employee of Nirvana’s label Geffen.
Usually under US law, when an employee creates a work protected by copyright, it is considered a 'work for hire', meaning the employer would be the default owner of the copyright.
However, Fisher argued that designing the logo was not actually part of his remit at Geffen. That basically means he designed the logo in his own time and it was therefore not a work for hire. And in the absence of a contract saying otherwise, that would make Fisher the copyright owner.
Judge Kronstadt rejected that argument last December, concluding that, if the logo was created by Fisher, it was a work for hire, making Geffen the copyright owner. A factual dispute remains regarding whether the logo was Cobain or Fisher's work. However, either way Fisher is not the copyright owner and therefore not a party to this case.
Fisher is appealing that specific judgement and wants the wider dispute stayed while he goes through that process. Kronstadt did not reach a conclusion on that request yesterday, but indicated he probably won't stay the case pending Fisher's appeal.