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Not so smiley

September 30, 2020, By

The iconic “X-Eye Smiley Face” is intimately associated with the band Nirvana and one that many believed to have been created by its lead singer Kurt Kobain before tragically taking his own life in 1994. The design features a yellow smiley face with a crooked grin, X’s for eyes and its tongue hanging out and has featured on numerous formats of the band’s merchandise for years.

Nirvana obtained Copyright Registration No. VA564166 from the United States Copyright Office for the design in 1993, formally entitled “Happy Face,” as a t-shirt design adorned with the X-Eye Smiley Face, the band name, and a slogan on the back.

In November 2018, the famous fashion designer Marc Jacobs announced the release of its “Bootleg Redux Grunge” collection. Included within this collection were black and yellow clothing items depicting a smiley face logo with the letters “M” and “J” in place of the eyes, a squiggly smile, and the word “HEAVEN” written above the face. 

Understandably both fans and the band were extremely upset and this led to proceedings being commenced against Marc Jacobs for copyright infringement. For its part, Marc Jacobs counterclaimed arguing that the smiley face, part of its ‘Redux Grunge Collection’, was a “commonplace image” and could therefore not benefit from copyright protection.

In a surprising twist of events, a new party has joined the proceedings: an LA based graphic designer called Robert Fisher who worked with the band on its earliest albums and concept art. Mr Fisher claims he was the actual creator of the famous X-Eye Smiley Face and that he had never assigned it to the band.  If Mr Fisher’s claim is judged to be true, not only will it clearly sink the current case against Marc Jacobs but could leave the band liable to Mr Fisher for decades worth of retrospective merchandise sales for items bearing the logo.

 Briffa comment

It is important to note that unlike in the UK and EU, America has a formal copyright recordal system which is required in order to obtain higher damages and/or payment of your legal fees in the event of infringement. Here, you need only retain sufficient evidence that you were the first creator of the copyright work in question (and that is why we always advise you to keep time stamped versions of each iteration of your work throughout the design process).

Here at Briffa, the team benefits from over 25 years’ experience assisting with copyright claims in nearly every jurisdiction in the world and we are able to assist in all aspects of the process from initial filing to enforcement. If you need any further information in this regard please do feel free to get in touch with us via [email protected].

Written by Tom Synott, Associate

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