Smells Like Copyright Infringement

20

February

2019

Nirvana brings a copyright infringement suit against Marc Jacobs for copying their logo in their apparel line

The fashion world is no stranger to copyright infringement suits.  This past year alone, Balenciaga faced at least three different lawsuits for copying common or lower-cost items (such as the Little Trees original car freshener and an Ikea shopping bag).  Based on these copyright infringement suits, lately it seems as if the current wave of creativity in fashion stems directly from others’ work, with fashion designers attempting to pass off the work of others (with a small twist) as their own in an attempt to find the next in fashion.  Marc Jacobs is no exception to this trend.

In November 2018, Marc Jacobs released a grunge line, which included the “Bootleg Redux Grunge Collection” t-shirt, a black shirt with the word “Heaven” written in yellow and a familiar yellow smiley face, only changed up by a “M” and “J” where the eyes typically are. This was no doubt an attempt to monetise the rising popularity of “vintage aesthetic”, popular with the likes of what they call a “vsco girl” or “egirl”. Rising searches such as “where to buy grunge clothes” are no doubt what brought this retro grunge aesthetic to the forefront of Marc Jacob’s mind.

Nirvana, who holds copyright ownership over the original smiley face brought a copyright infringement action against the popular fashion designer (as well as Saks Fifth Avenue and Neiman Marcus for selling the items).

Nirvana’s smiley face logo was created by the band lead, Kurt Cobain, and has been featured on a number of products, beginning with their Nirvana Nevermind album cover in 1992.  The band has since licensed its logo out to several companies, including Target, who is permitted to use the band logo on products as specified by an agreement between the company and band.

For a copyright infringement cause of action, the law simply requires that Nirvana owns the copyright and that Marc Jacobs copied the work.  “Copying” can be established through evaluating several factors, including actual copying, wide dissemination of the work, having access to the work, expert opinion, and opinion of laypersons (i.e., a jury of non-experts may determine the work was copied).

As if the flagrant copying of the smiley face is not enough to seal Marc Jacobs’s fate, an advertisement for the collection displays the words “Come as You Are,” which just so happens to be the title of one of Nirvana’s most famous songs.  The Marc Jacobs Tumblr also previously featured a meme of Kurt Cobain performing “Smells Like Teen Spirit.”  This has since been removed.

Marc Jacobs is obviously in the wrong with its blatant copying and reliance on the goodwill that Nirvana had established through its 25+ years of music and merchandising.  Due to the wide dissemination of the band’s work throughout the world and the distinctiveness of the band’s logo and color combination, there is no question that Marc Jacobs’ actions meet the burden of copyright infringement.


Update:  The parties attended a settlement conference on October 16, 2019, but there is no indication that a settlement was reached.  At this time, the parties await a (likely time consuming and expensive) trial.


[This article was prepared by Abbie Cook, our intellectual property research apprentice.]


Sources: TMZ , Forbes

Smells Like Copyright Infringement

time to read: 4 min