Robert Fisher, a graphic designer in California, is now claiming to be the rightful creator and copyright owner of Nirvana‘s smiley face logo — adding yet another problem to the ongoing litigation between Marc Jacobs and Nirvana LLC.
According to reports, Fisher filed a motion on September 13 to “intervene in the ongoing federal litigation in the U.S. California Central District.” His court papers state that he was an art director at Geffen Records when the label signed Nirvana, and asked his creative director if he could work with the band on the design of his forthcoming album. Fisher and Nirvana collaborated for months and finally landed on the now-famous Nevermind album, and Fisher became the band’s “go-to person for almost all of its graphic design needs” — even after Cobain died in 1994 and after Fisher left Geffen Records in 1999.
Fisher’s complaint further states that he was asked to design “more retail-friendly merchandise” for Nirvana in 1991, so he “started playing around with variations of the smiley faces that he used to draw in his final year at Otis College, when acid culture was at its peak.” He notes that he decided on an “x-eyed design” with the tongue pointing sideways “as a wink to the tongue-in-cheek working on the back” of the T-shirt. With a felt tip, Fisher drew the smiley face on tracing paper and enlarged it with a Xerox machine, which created the “squiggly-looking” design. The name of the band in Onyx font was placed above it and finally printed in yellow/gold.
The graphic designer asserts that it was his design that was submitted for copyright, that he was never an employee of Nirvana, Inc. and that there was never an agreement with Nirvana, so it could not be considered as work for hire.
Inge De Bruyn, Fisher’s attorney, told Billboard that her client only found out about the misattributing recently. “He was also not aware that, back in 1993, Nirvana, Inc. registered the copyright for the Happy Face t-shirt design, naming itself as the author. Robert has always been a rather private person and not one to wear his achievements on his sleeve,” De Bruyn said. “That said, there’s a clear line between people speculating about the origins and authorship of his work, and it being misattributed to someone else. Most creative people would object to that. Artists deserve proper credit for their work. Oftentimes, it’s ALL they get.”
She continued, “The rule in copyright is that the individual creator of a work is to be considered its author and original owner. That really is the basic premise. ‘Work-for-hire’ as a legal fiction forms a very limited exception to that premise. As explained in the filings, we don’t believe that, under the law, this exception applies here. And the situation is such that if Robert does not assert his rights now, he risks losing them forever.”
Meanwhile, Nirvana LLC attorney Bert H. Deixler told the Los Angeles Times that Fisher’s claims “factually and legally baseless,” and will be “vigorously” challenged.
The Marc Jacobs-Nirvana lawsuit has been going on for two long years. Nirvana filed a copyright infringement lawsuit against Marc Jacobs in December 2018, claiming that the styles in question violated its specific trademark for the yellow smiley face design. Marc Jacobs retaliated with a motion to dismiss shortly after, asserting that its modified version of the logo is not in violation of the trademark. The fashion label then countersued in November 2019, alleging that the music group’s copyright registration of the design was not valid since no one can pinpoint the creator of the logo. Many thought that Kurt Cobain could have been the creator, however, it would have been hard to prove due to his death.
Elsewhere in music, Post Malone leads the 2020 Billboard Music Awards nominations with 16 nods.
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