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Marc Jacobs countersues Nirvana over smiley face logo use

Nirvana logo

Nirvana sued designer Marc Jacobs in December of 2018 over a shirt in his Redux Grunge collection, the (aptly named?) “Bootleg Grunge tee”:

Marc Jacobs Bootleg Grunge Tee
image via Marc Jacobs

Nirvana said that Marc Jacobs was implying endorsement by the band with the shirt, which they said copied Kurt Cobain’s 1991 design. Jacobs filed a motion to dismiss the suit in March, saying the designs weren’t similar enough to be copyright infringement, and that a transfer of rights to the design from Cobain to the band hadn’t been adequately established. As The Hollywood Reporter points out, U.S. District Judge John A. Kronstad denied Jacobs’ motion to dismiss, and now Jacobs has countersued Nirvana. He and his lawyers are trying to have the copyright on Cobain’s design declared unenforceable.

“This allegation finds no support in the sworn testimony of David Grohl and Krist Novoselic, the two surviving members of the band, Nirvana, who could not identify the creator of the disputed work in sworn testimony,” Jacobs counter-suit reads. “The apparent absence of any living person with first-hand knowledge of the creation of the allegedly copyrighted work in question, coupled with numerous other deficiencies in the 166 Registration that is the basis for Nirvana’s infringement claim are the basis for the counterclaim asserted.”

As Bloomberg reports, Jacobs also mentions that the Compendium of U.S. Copyright Office Practices cites “the name of a band or performing group” and “simple emoticons such as the typical smiley face” as examples of things that don’t qualify for copyright projection. “The registration is composed of familiar symbols or designs and/or words and short phrases such as names, titles, and slogans, and thus are not subject to copyright protection,” his counter-suit continues.

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