NEW YORK — Last year, Marc Jacobs released a Grunge Redux line with a T-shirt that had a familiar look. Nirvana also noticed the smiley face logo, which resembles the one famously used on its merchandise. That led Nirvana LLC, which is formed of Dave Grohl and Krist Novoselic, as well as the estate of Kurt Cobain, to sue Marc Jacobs International for copyright infringement.
Nirvana is asking for an injunction and financial compensation from Marc Jacobs, as well as retailers Saks Fifth Avenue and Neiman Marcus. The LVMH-controlled brand petitioned for dismissal, arguing that there are crucial distinctions between the smiley faces and that Nirvana LLC hasn’t demonstrated that it holds valid copyright. A federal judge in California indicated that he would likely reject the designer’s request, so both sides are preparing for trial — an unusual example of such a case potentially going all the way to court.
Brands are no strangers to copyright disputes, although such conflicts are usually settled since they are expensive to fight. “[But] these images and this grunge collection are core to who Marc Jacobs is, so it's not surprising that he would choose to stand and fight,” says Susan Scafidi, founder and director of the Fashion Law Institute at Fordham University.
Fashion versus music
Such cases could become more common as musicians realise the commercial opportunities of celebrity-branded fashion lines. “Because this source of income can be so valuable, and [revenue from musician-designer collaborations is] becoming increasingly ubiquitous in pop culture... I only see the enforcement of copyright and trademark rights against the knockoff trade becoming more litigious,” says Elizabeth Kurpis, a New York fashion lawyer.
Designers and musicians have different expectations when it comes to copyright.
Fashion copyright law is still evolving and operates differently than mainstream copyright law, leaving many unclear on the boundaries. “Most three-dimensional fashion designs are not protected, so we live in a very different space from music where the composition is protected, and the recording is protected,” says Scafidi.
There is a sense in the entertainment world that designers play fast and loose with the licensing of music iconography. “When these high-fashion companies decide that heavy metal, for example, is a cool look and they start replicating… trademarks belonging to musical bands, they are crossing a line,” says Jill Berliner, a partner at Rimon Law, which represents Nirvana. “The closer it comes to real art that looks like someone else's art, [the more] they need to err on the side of caution.”
Marc Jacobs did not respond to multiple requests for comment. A representative for LVMH declined to comment.
In its filing, the brand noted that Marc Jacobs has dressed Cobain’s widow Courtney Love and that she commented positively on an image of the T-shirt on Instagram. The late rock star’s daughter, Frances Bean Cobain, also appeared in a 2017 campaign for Marc Jacobs, an association that the brand may believe gives it more leeway with an homage to the band.
Well-financed fashion companies might be willing to take a gamble that bands won't pursue aggressive action. “It can sometimes be ‘cheaper’ to ask for forgiveness than seek permission in the first place. The matter could potentially settle... for an amount less than what Marc Jacobs would have to pay to secure Nirvana's consent from the get-go," says Kurpis. “I can only assume they knew the risks of using an image that so closely resembles the iconic Nirvana image, and accordingly came prepared for the fight.”
While brands may avoid legal judgment, there is potential for backlash if designers are seen to copy the work of smaller labels or independent creators. “Social media often calls out things that are not legally protected, but if they are copied reflects poorly on the copyist,” says Scafidi. “[It] is changing the way that creators can protect their works, and it changes the involvement of fans in the protection of intellectual property.”