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 grounds that the artwork in question was “commonplace”. The somewhat unclear origin and actual deployment of the artwork seem to support such an assumption.

This is yet another brick in the wall dividing the copyright over a music/artist/band-related artwork and its exploitation by third parties. It landed in Italy with the sensational case of the 2018 Roger Water’s “Is this the life that you really want?” album cover, which was claimed by artist Emilio Isgrò as an infringement of his artworks. Mr Isgrò based its on the fact that the expression of the idea is what counts and in this case the idea behind Water’s album cover was conveyed in the same way as Isgrò’s works of art.

This claim was upheld in first instance by the Court of Milan, which then reversed its judgement and dropped the artist’s claims (who, in the end, clinched a settlement), however the provisional granting of the infringement claim based on the copy of the aural message underneath the style of the artwork is a valid precedent to show that a copyright infringement could also be grounded by the reproduction/exploitation of the message conveyed by the artwork at stake.

Bottom line, from an IP perspective, the relationship between such artworks and stylists/fashion houses wishing to make close ties thereto is still complicated from an IP perspective. Cases like these could prove crucial to bolster the relevant case-law on the matter.

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