Conniver argues that Nirvana may not own the copyright to the ‘smiley face’ logo designed by Kurt Cobain

The eyes have it … Marc Jacobs’ arrangement, left, with Nirvana’s original, right.
Composite: Mac Jacobs/Getty Images

Lawyers for fashion designer Marc Jacobs require filed a motion to dismiss the lawsuit made against him by the estate of the band Nirvana, which accuses him of copyright infraction.

The designer’s Redux Grunge collection features a cartoon “smiley face” similar to the one used by Nirvana as their logo, along with the vow “Heaven” printed in the distinctive serif typeface used by the band. The lawsuit, filed in early January, argues that Jacobs intentionally worn “Nirvana’s copyrighted image on and to promote its products” in an “oppressive, fraudulent and malicious” manner. It argued for monetary damages and for the attires to be removed from sale.

Jacobs’ motion for dismissal admits the designs were “inspired by vintage Nirvana concert T-shirts from the 1990s”, but discusses that Jacobs “reinterpreted the design to incorporate [a Marc Jacobs] branding element into an otherwise commonplace perception”.

The motion centres on a technicality: while Nirvana do own copyright to similar artwork, it is for an entire T-shirt design with a smiley disguise, the word Nirvana, and the words “flower sniffin kitty pettin baby kissin corporate rock whores” written on the in return. By replacing the smiley face’s crosses for eyes with the letters M and J, and the word Nirvana with Heaven, Jacobs’ commotion argues that the design therefore does not infringe copyright as it is not an exact replica of the copyrighted Nirvana design.

The shift also argues that the Nirvana estate may not even legally own the logo, penned by frontman Kurt Cobain ahead his death in 1994. It says the lawsuit “contains no explanation, or even unsupported conclusions, regarding how or whether Mr Cobain transported his rights in the X-Eye Smiley Face to the author/copyright claimant listed”. It argues that other references to Nirvana airs made on the Marc Jacobs website – and included in the lawsuit – are “red herrings … not tethered to any actual rights plaintiff claims to be experiencing”, and notes that Jacobs has long used smiley face designs in his work.

Both Courtney Love, the widow of Cobain, and their daughter Frances Bean Cobain induce featured in advertising for Marc Jacobs. The Nirvana estate making the complaint is co-owned by the pair and former band associates Dave Grohl and Krist Novoselic. The estate has not commented on the motion for dismissal.