(Photo
by
Larry
Busacca/Getty
Images)
Grunge
is
back.
This
is
apparent
from
the
massive
explosion
in
the
wearing
of
gigantic,
distressed
pants
with
artfully
ragged
hems.
And
the
return
is
not
limited
to
fashion.
Nirvana,
the
standard-bearer
of
all
things
grungy,
the
totemic
band
that
brought
plangent,
mumbled
lyrics
and
sludgy
guitars
to
the
mainstream,
who
deplored
optimism
while
wearing
floral
cardigans,
is
back
—
in
court.
Lead
singer
Kurt
Cobain
has
passed,
but
the
band’s
remaining
members
are
embroiled
in
a
complex
copyright
battle
over
the
band’s
iconic,
blissed-out
yellow
logo.
You
have
probably
seen
this
logo
peeping
out
at
you
from
its
place
on
a
black
T-shirt
beneath
an
unbuttoned
flannel.
It
is
a
take
on
the
classic
“smiley
face,”
with
an
“x”
for
each
eye,
a
wobbly
grin
that
implies
intoxication,
and
a
rudely
protruding
tongue.
It
usually
appears
below
the
band’s
name
in
bold
all-caps
and
is
oft
referred
to
as
the
“Smiley.”
That
logo
is
at
the
crux
of
the
proceedings
in
Nirvana,
LLC
v.
Marc
Jacobs
International,
LLC;
et
al.
Specifically,
who
owns
the
logo
and
who
can
sell
merchandise
bearing
same.
The
issue
reached
the
courts
when
high-style
designer
Marc
Jacobs
started
producing
and
selling
shirts
that
included
a
derivative
of
the
Nirvana
logo.
Jacobs
kept
the
same
striking
black-and-yellow
colorway,
the
wobbly
mouth,
the
protruding
tongue,
and
the
same
overall
look
and
feel
of
the
Nirvana
logo,
but
replaced
“NIRVANA”
with
“HEAVEN”
and
the
x-eyes
with
an
m-eye
and
a
j-eye,
presumably
to
reference
the
designer’s
initials.
Nirvana
sued,
as
might
be
expected,
to
preclude
this
corporate
exploitation
of
their
iconic
logo.
And
that’s
when
things
got
interesting.
Ownership
of
the
work
at
issue
is
a
fundamental
element
of
a
copyright
claim.
Nirvana
initially
laid
claim
to
the
Smiley’s
copyright
by
virtue
of
Cobain’s
alleged
creation
of
at
least
some
of
the
logo
artwork
back
in
the
1990s.
Given
his
passing,
the
evidence
of
this
creation
is
spotty.
There
were
apparently
no
witnesses
to
his
creation
of
the
work,
or
sketches
or
drawing
evidencing
his
creation,
and
he
never
executed
any
documents
noting
his
creation
or
transferring
any
rights
in
the
work.
But
the
artwork
is
in
his
style
and
he
created
virtually
all
of
the
artwork
for
the
band
at
the
time
of
its
creation.
And,
it
seems,
no
one
had
ever
really
challenged
his
creation.
Until
now.
Learning
of
the
case,
Robert
Fisher
sought
to
intervene.
A
graphic
designer
by
trade,
he
claimed
that
he
was
the
one
that
created
the
Smiley,
doing
so
as
a
favor
for
Nirvana,
with
the
understanding
they
would
use
it
on
merchandise.
Fisher
claims
to
possess
all
of
the
details
of
the
logo’s
creation
as
well
as
the
original
Xerox
blowup
of
the
Smiley.
He
also
for
years
has
included
the
Smiley
in
his
personal
design
portfolio,
which
he
circulates
to
promote
his
services.
Fisher
disputes
that
Cobain
created
most
of
Nirvana’s
art,
pointing
to,
among
other
things,
band
album
covers
created
by
third
parties.
Against
this
backdrop,
the
district
court
was
asked
to
adjudicate
the
ownership
question.
A
couple
of
key
facts
drove
the
decision,
including
that
Fisher
worked
for
Nirvana’s
record
label,
Geffen,
at
the
time
he
allegedly
created
Smiley,
and
knew
the
design
was
intended
for
merchandise.
As
a
result,
under
17
U.S.C
§
201(b),
Geffen
would
have
owned
the
Smiley’s
copyright
as
a
work-for-hire.
Geffen,
now
owned
by
UMG,
disclaimed
any
ownership
in
the
Smiley
but
nevertheless,
during
the
lawsuit’s
pendency,
executed
a
transfer
of
the
Smiley’s
copyright
to
Nirvana.
The
court
homed
in
on
the
work-for-hire
issue,
which
allowed
it
to
sidestep
the
competing
versions
of
the
Smiley’s
creation
and
conclude
that
even
if
Fisher
created
the
logo
it
would
have
been
as
a
work-for-hire
for
his
employer,
Geffen,
and
was
subsequently
transferred
to
Nirvana.
While
this
analysis
serves
the
equities
and
makes
sense
given
the
decades
of
Nirvana’s
use
without
complaint
of
the
logo,
it
does
have
a
few
fleas.
For
one,
it
contravenes
Geffen/UMG’s
assertions
that
Cobain
drew
the
logo
and
that
it
never
had
copyrights
in
the
logo,
as
a
work-for-hire
or
otherwise.
If
UMG/Geffen
owned
the
copyrights
since
the
1990s,
then
Nirvana
was
exploiting
the
logo
on
a
dubious
legal
footing
until
the
middle
of
this
lawsuit,
when
the
transfer
was
executed.
Per
17
USC
204,
ownership
of
a
copyright
cannot
be
transferred
without
the
execution
of
a
written
contract.
Given
that
no
contract
existed
until
recently,
Nirvana’s
ownership
of
the
logo
could
be
of
that
same
recent
vintage.
The
court
also
grapples
with
the
issue
of
how
the
statute
of
limitations
applies
to
ownership
claims.
There
exists,
unfortunately,
for
ownership
claims
a
court-created
carveout
from
the
normal
infringement
statute.The
statute
on
ownership
disputes
runs
three
years
after
anyone
expressly
repudiates
another
author’s
ownership
by,
for
example
stating
“you’re
not
the
owner,
I
am”
or
exploiting
the
artwork
in
a
manner
inconsistent
with
the
artist’s
ownership.
The
court
focuses
on
the
fact
that
Fisher
did
not
repudiate
Geffen
or
UMG’s
ownership
in
the
past.
But,
the
query
could
have
been
whether
Nirvana
repudiated
Geffen
or
UMG’s
ownership.
And
it
apparently
did,
by
making
and
selling
merchandise
bearing
the
logo
for
decades.
If
this
constituted
repudiation,
then
Geffen/UMG
would
be
precluded
from
challenging
Nirvana’s
ownership
and
the
result
might
be
different
here.
But,
there
are
material
issues
with
this
doctrine
arising
from
the
fact
that
nobody
really
knows
what
“express
repudiation”
means,
and
there
is
nothing
in
the
doctrine
that
stops
any
rando
off
the
street
from
sending
a
letter
to
Paul
McCartney,
claiming
ownership
of
a
famous
work,
like
the
Beatles’
“Abbey
Road,”
and
then,
assuming
no
response,
claiming
ownership
once
three
years
pass
without
Sir
Paul
filing
a
lawsuit.
Copyright
registration
invalidity
also
plays
a
part
in
this
case,
though
the
court
seems
to
misapply
the
presumption
of
validity
that
attaches
to
a
registration.
There
are
also
trademark
and
trade
dress
issues
if
that’s
your
bag.
At
the
end
of
the
34-page
ruling,
the
court
tees
up
the
ultimate
question
of
infringement
for
trial.
As
you
might
imagine,
Fisher
has
already
sought
the
right
to
file
an
interlocutory
appeal,
but
the
court
indicated
in
March
that
the
request
would
likely
be
denied.
So,
barring
a
settlement,
Nirvana
will
find
themselves
not
on
stage
but
on
the
stand
this
summer
or
fall.
Scott
Alan
Burroughs,
Esq.
practices
with Doniger
/
Burroughs,
an
art
law
firm
based
in
Venice,
California.
He
represents
artists
and
content
creators
of
all
stripes
and
writes
and
speaks
regularly
on
copyright
issues.
He
can
be
reached
at scott@copyrightLA.com,
and
you
can
follow
his
law
firm
on
Instagram: @veniceartlaw.