djfrosty

A years-long legal fight over Nirvana‘s iconic smiley face logo could be headed for a major showdown, sparked by a former record label art designer who says he, not Kurt Cobain, created the famed drawing.

Lawyers for the 1990s legends are locked in a sprawling, three-way dispute over the image, which has appeared on countless t-shirts and other merch in the years since Cobain’s death. Nirvana is suing fashion designer Marc Jacobs for using it without permission on grunge-themed apparel, while Robert Fisher — a former designer at Geffen Records — is fighting the band over who created it in the first place.

In a filing last month in Los Angeles federal court, Fisher asked for the right to take the case to a federal appeals court. He wants to challenge a decision in favor of the band, issued in December by the judge overseeing the case, that he claims would “unfairly tip the balance of equities in favor of Nirvana” in an upcoming trial.

“For justice to occur, the jury should be presented with all disputed issues of fact, not only those convenient to Nirvana,” Fisher’s lawyers wrote.

Nirvana has been in court for years over the famous drawing – a yellow smiley face with X’d-out eyes that first appeared during promotion for 1991’s Nevermind. The design eventually became something of an unofficial logo for the band, and has become particularly prominent again in recent years amid a wave of 90s nostalgia among younger music fans.

Lawyers for Nirvana’s corporate entity first sued Marc Jacobs in 2018, accusing the design house of using a look-alike image on a line of its own t-shirts and other apparel called “Bootleg Redux Grunge.” They said Jacobs had just replaced “Nirvana” with the word “Heaven” and replaced the two eyes with an “M” and a “J,” but had changed little else.

“Defendants’ use of Nirvana’s copyrighted image on and to promote its products is intentional, and is part and parcel of a wider campaign to associate the entire ‘Bootleg Redux Grunge’ collection with Nirvana, one of the founders of the ‘grunge’ musical genre,” the band’s lawyers wrote at the time.

In their initial complaint, Nirvana’s lawyers said the smiley face had been created by Cobain – the conventional wisdom for decades about the logo’s origins. But after reading media coverage of the lawsuit, Fisher jumped into the case in 2020, claiming the band’s allegations against Jacobs suffered from just one teeny-tiny flaw: “It is, in fact, Mr. Fisher, who authored the Happy Face, not Mr. Kurt Cobain.”

In legal filings, Fisher told a detailed story of how he allegedly created the design. While working as an art director at Geffen, he said he had quickly become “Nirvana’s go-to person for most of its graphic design needs.” In the summer of 1991, he says he was asked to design something more “consumer-friendly” than an existing t-shirt logo, which featured a circular illustration depicting one of the circles of hell from Dantes Inferno.

“Wanting to stick with a circular design, he started playing around with variations of the smiley faces that he used to draw in his final year at [college], when acid culture was at its peak,” Fisher’s lawyers wrote. “Ultimately, Mr. Fisher settled on an x-eyed design and added a tongue pointing sideways.”

After the lawsuit against Marc Jacobs was filed, Fisher says he originally took his story to the band, assuming it would “help” their lawyers to understand his involvement in the creation of the smiley logo. But he says he was quickly rebuffed because the “the facts” were “a serious inconvenience” to the band.

“For 30 years now, Nirvana has reaped enormous profits from Mr. Fisher’s works through the sale of a wide range of products,” his lawyers wrote in their legal filings. “Assisted by a team of lawyers and managers, Nirvana was able to do so without any compensation to Mr. Fisher by falsely claiming authorship and ownership.”

Unsurprisingly, Nirvana see things differently. The band’s lawyers have staunchly maintained that it was Cobain who had designed the image. But as an alternative, they’ve also argued something else: That even if it was Fisher who created the logo, he did done so as a “work-for-hire” for Geffen. Under the rules of copyright law, would mean that the company — and not Fisher — was the legal “author” of the work.

In December, Judge John A. Kronstadt largely agreed with Nirvana’s assessment. Fisher had argued that he’d done the logo on his own, as a side project separate from his job at Geffen. But the judge ruled that Fisher had clearly been an employee of Geffen at the time, and the task in question – designing a graphic for a Geffen-signed band – was clearly done as part of that job. “Assuming Fisher drew the Smiley,” the judge wrote, “it was a work for hire for Geffen.”

It’s that ruling that Fisher now wants to appeal. In last month’s filing, he asked Judge Kronstadt to hit pause on the case, and instead allow him to immediately challenge the decision at the U.S. Court of Appeals for the Ninth Circuit. In doing so, he warned the judge that his decision on the work-for-hire issue was not only “highly erroneous” – he says he created the design “as a fan of the band, outside of any of his tasks for Geffen” — but also procedurally unfair.

“It will likely be years until this lawsuit is finally resolved and Fisher is able to appeal,” his lawyers wrote. “This case would proceed to a trial where the jury would be extremely limited in the findings it could make and where it would be required to completely ignore Fisher’s position in this matter.”

Attorneys for Nirvana did not return a request for comment, but they believe no such delay is necessary. In legal filings, they’ve asked the judge to move toward settling a trial date; in private correspondence that Fisher disclosed in his filings, they were more blunt: “We are opposed. The Court’s ruling is clear, carefully considered and correct. No more delay. Let’s get the case to trial ASAP.”

Lawyers for Marc Jacobs – which obviously stands to benefit if Fisher is the true owner of the smiley face logo – declined to comment for this story. But they’ve also weighed in and, unsurprisingly, they want any talk of a trial postponed until Judge Kronstadt decides on whether Fisher can get his chance to make his case before an appeals court: “The case will only be ready for trial after Mr. Fisher’s role in that trial is determined.”