The Infringement Of The Aural Concept Of A Copyright (Aside From The Copyrighted Item Itself)

The dispute involving former members of the “Nirvana” band and the notorious fashion brand Marc Jacobs has brought some sensation over the past few months. From a legal standpoint, this represents another pivotal case on the copyright of music and counter culture-related artworks and their exploitation by third parties.

Last January, representatives of the remaining "Nirvana" band members (Dave Grohl and Krist Novoselic) sued the Marc Jacobs brand before a California court, claiming the infringement of their copyright over the smiley face used by the band.

The disputed image has been subject to a US copyright registration since 1992 and, according to the band's claim, it holds a high level of distinctiveness for the band.

The matter at stake is not just a copyright one. The alleged reproduction (infringement) carried out by Marc Jacobs on his 1993-2018 Grunge line is also the copy and the exploitation of the overall aural message surrounding the image. In a nutshell, the actions claimed as unlawful by Nirvana, consist in Marc Jacobs using the smiley as one of the landmark of grunge culture to distinct a series of his own products pertaining thereto from an aural standpoint. Such an assumption is inferable also from the font used for the word “heaven” (which, by the way, could be considered somewhat as a synonym of “nirvana”).

The claim also pointed accordingly to the alleged unlawfulness of the overall storytelling behind the use of the image by Marc Jacobs conveying a turning back to the “grunge” style. Nirvana (among others) being one of its main ambassadors in the 1990s. Marc Jacobs indeed declared that his intention was to make a revamp of his 1993 grunge debut line.

This is a clear message to fashion houses not to perch too high on the creative shoulders of third parties, such as rock bands. Interestingly enough, Marc Jacobs responded to the suit and recently filed for a counter-suit, on the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT