A judge in California has refused to dismiss through summary judgement the lawsuit being pursued by the company that controls the rights in all things Nirvana against the fashion designer Marc Jacobs. The latter’s claim that the Nirvana-esque t-shirt his company launched last year is not sufficiently similar to the band’s old merchandise to constitute copyright infringement was “unpersuasive”, the judge said.
Last year’s grungy clothing line from the Marc Jacobs fashion business included t-shirts bearing a version of the wobbly smiley face image that was a staple of Nirvana’s merch back in the band’s hey-day. Nirvana LLC sued for copyright infringement last December. Jacobs then hit back with a motion to have the case dismissed in March.
Among other things, the fashion firm said that – while its wobbly face t-shirts were clearly influenced by the iconic Nirvana merch from back in the day – the imagery on its garments was sufficiently different to not constitute copyright infringement.
“[The original Nirvana image filed with the US Copyright Office] includes the word ‘Nirvana’”, the legal filing said. “The accused products do not. The [registration] includes the ‘flower sniffin’ writing [on the back]. The accused products do not. The [registration] includes a smiley face with Xs as eyes. The accused products do not; they use a different letter for each eye, the letters M and J, signifying Marc Jacobs”.
It went on: “The only similarity between what is covered by the [registration] and the artwork contained on the accused products is the use of a substantially circular outline for the smiley face and a squiggly line used for a mouth, with a tongue sticking out”.
However, according to Law360, judge John A Kronstadt has ruled that the arguments for dismissing the Nirvana copyright claim are “unpersuasive”, adding that “a review of the images confirms that the allegation as to substantial similarity is sufficient”.
“It is also noteworthy”, the judge said, “that the accused products have combined this protectable artwork with other distinctive elements of the Nirvana t-shirt, including through the use of yellow lines on black background and a similar type and placement for the text above the image on the clothing”.
The latter point alludes to the fact that, while the Marc Jacobs garment didn’t have the word ‘Nirvana’ above the wobbly face image, as on the original t-shirt, there was another word in the same spot – ‘Heaven’ – which was in a very similar font to the band’s logo.
This week’s ruling means that the case will now proceed. Court filings confirm that there have been efforts to reach an out of court settlement, though to date those have been unsuccessful.