In the latest twist in Nirvana’s two-year-old copyright and trademark battle with designer Marc Jacobs over the use of the band’s smiley face design, a California graphic artist has stepped forward to say that he created the band’s logo and not Kurt Cobain.
Robert Fisher, a freelance graphic designer based in Woodland Hills, filed a motion Sept. 13 to intervene in the ongoing federal litigation in the U.S. California Central District claiming to be the rightful creator and owner of the copyright design.
Nirvana LLC has been in litigation with Jacobs since 2018, when they sued the designer for copyright infringement and trademark infringement alleging that he had used that Happy face design as part of his “Bootleg Redux Grunge” line without their permission. The band’s legal papers state Cobain created the Happy Face as a work for hire for Nirvana, Inc. and the band has a valid copyright registration for the t-shirt design that covers the Happy Face illustration. Nirvana said it has been using their copyrighted “Smiley Face” design and logo continuously since 1992.
Jacobs’ attorneys countered in court papers that the designer drew inspiration for his 1993 grunge collection from the “looks that his friends were wearing in downtown Manhattan and Pacific Northwest at the time.” Jacobs’ team admitted in their court papers that their smiley face design was inspired by vintage Nirvana concert t-shirts, but said his face design was reinterpreted by using his MJ initials as the face’s eyes.
Fisher’s claims throw a curveball into the band’s ongoing litigation. Fisher said in his court papers that he was working as an art director at Geffen Records when he heard that Geffen was going to sign Nirvana. Fisher said he was already a fan of the band and asked the creative director if he could work with them on their upcoming album design, according to his complaint.
Fisher said he worked for several months collaborating with the band and Cobain on what would become the cover of the band’s Nevermind album, showing the image of the naked baby boy swimming trying to grab a dollar bill. Fisher said he then became “Nirvana’s go-to person for almost all of its graphic design needs.” He said the relationship continued even after Cobain’s death in 1994 and after he left Geffen in 1999.
Fisher claims that it was in mid-1991 when he received a request to design a t-shirt for the band to come up with more retail-friendly merchandise. Fisher said 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 said he settled on an “x-eyed design” and added the tongue pointing sideways “as a wink to the tongue-in-cheek working on the back” of the shirt. He said he used a felt tip pen to draw the smiley face on tracing paper and blew it up bigger with a Xerox machine, which he said created the “squiggly-looking” face design. He said he then put Nirvana’s band name above it in Onyx font and picked a yellow/gold color for printing.
Fisher says his design is exactly what was submitted to the copyright office, that he was never an employee of Nirvana, Inc. and that he never executed an agreement with Nirvana, so his work cannot be considered work for hire.
Fisher’s attorney, Inge De Bruyn, tells Billboard that her client only learned recently that the band was “misattributing the illustration to Kurt Cobain.’
“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 says. “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.
“The rule in copyright is that the individual creator of a work is to be considered its author and original owner,” De Bruyn continued. “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.”
Nirvana LLC attorney Bert H. Deixler told the Los Angeles Times that Fisher’s assertions were “factually and legally baseless” and that his claims would be will be “vigorously” challenged. Nirvana’s representative declined to comment to Billboard.
