Who is the true author of Nirvana's Smiley?

Six years after Nirvana filed a lawsuit against Marc Jacobs for the use of the Smiley, which originated as a symbol of the band, the legal battle has ceased. Last Tuesday, in California federal court, the remaining members of Nirvana, artist Robert Fisher, and the LVMH-owned Marc Jacobs International agreed to resolve their legal dispute and finalize an agreement within the next three weeks. The lawsuit, initiated by Nirvana in December 2018, claimed that the band owned the copyright of the famous Smiley with “X” eyes and a tongue-out smile. Nirvana stated that this design, created by the band’s founder Kurt Cobain around 1991, had been used on various licensed items, including T-shirts, bags, and hoodies. The dispute concerned a Marc Jacobs T-shirt that featured a similar smiley face design, but with the initials “M” and “J” instead of the “X” eyes used by Nirvana. Nirvana’s legal team argued that the design was practically identical or substantially similar to the original logo. In response, Marc Jacobs International, along with retailers Saks Fifth Avenue and Neiman Marcus, filed a counterclaim in December 2018, contesting Nirvana’s claims and adding further complexities to the legal battle.

The lawsuit was filed after Marc Jacobs launched the Bootleg Redux Grunge collection in November 2018. This collection, seen as a nostalgic reprise of the 1993 Perry Ellis collection, included the Smiley variant with the initials “M” and “J” instead of the Xs. Marc Jacobs acknowledged in court documents that the design was «inspired by vintage Nirvana concert T-shirts from the 1990s – the era of grunge fashion». The controversial Smiley was prominently displayed during the opening of the Marc Jacobs store on Madison Avenue in December 2018, which also hosted the launch party for the Redux Grunge collection that saw celebrities like Gigi Hadid, Sofia Coppola, Kaia Gerber, and Presley Gerber in attendance. Beyond the contested collection, however, Marc Jacobs has included smiley faces in various forms in his collections for years, from the kidswear collaboration with SmileyWorld to the more recent one with Cactus Plant Flea Market. Anyway, the case became exceedingly complicated when, in 2020, Robert Fisher, former art director of Nirvana’s record label Geffen Records, stepped in claiming he created the logo in the ’90s. Adding credibility to Fisher’s claim is that he is the author of the legendary cover of the album Nevermind, featuring the swimming baby – a baby who, once grown up, also thought it best to sue Nirvana, but lost. During the trial, the testimonies of Nirvana’s founding members created even less clarity when Dave Grohl and bassist Krist Novoselic essentially said they did not know or remember who exactly was the author. The copyright, however, belonged to Nirvana and had been registered in ’98. But what do we know about how it originated?

What We Know About Nirvana’s Smiley

As Forbes explains, on September 13, 1991, Nirvana and DGC Records organized a party to celebrate the release of the band’s first major label album, Nevermind. The album would become a hit, selling over 30 million copies, but the invitation to the release party is the first known depiction of the "X-Eye Smiley Face", which has accompanied the band ever since, becoming one of the most recognizable and iconic rock logos ever. According to legend, the logo was drawn by Kurt Cobain in 1991, who was inspired by a logo from a strip club in Seattle called The Lusty Lady, which featured a dazed-looking smiley face with a phrase next to it that said "Have an erotic day!". Until 2020, this was the official version. A document signed by Dave Grohl, Krist Novoselic, Courtney Love, and Frances Bean Cobain - who together are the main owners of Nirvana LLC - states that the "Smiley Face" design was created by Kurt Cobain in 1991 and that all copyright and trademark rights associated with the design have always been owned by Nirvana, Inc. or Nirvana, L.L.C. However, in 2018, the lawsuit erupted, with Jacobs’ lawyers attempting to win by invalidating the copyright itself, effectively revealing that no one could definitively swear or prove if Cobain had actually created it himself. Two years later, however, it was the turn of former art director Fisher, who to this day has provided the most plausible version of the creation of the logo, substantiated by physical evidence. As reported by the L.A. Times: «According to Fisher, he immediately contacted Nirvana’s management offering to help, and then quickly followed up with an email that included proof of the smiley’s genesis, still stored in his garage».

At the time, Fisher explained to the L.A. Times that the original logo was created after the band’s managers requested a design for a T-shirt for their upcoming tour. The back was to feature the text “Flower Sniffing, Kitty Pettin, Baby Kissing, Corporate Rock Whores.” For the front, an image similar to that used for the band’s previous tour depicting Dante’s Circles of Hell was needed. The design was created using a technique he had learned while studying at the Otis/Parsons School of Design. He drew the image the size of a coin on tracing paper, then enlarged it with a photocopier, resulting in raw, uneven lines. The logo was then used on a flyer inviting fans to participate as extras in the Smells Like Teen Spirit video shoot and appeared again on an invitation to a record release party in Seattle. Fisher received a salary from Geffen, with no additional financial gain if one of his designs was used for an album that sold millions of copies. Often, Geffen’s art directors also worked outside their official duties, creating logos and other materials for bands without extra compensation. Finally, illustrator Rodger Ferris, who worked as a freelance for Geffen in the early '90s, corroborated Fisher’s claim regarding the Smiley. Ferris stated that the reference for the smiley face was an early photocopy of the image that Fisher had on his office wall.

Be that as it may, the agreement, reached through a mediator’s proposal, gives the involved parties 21 days to finalize the details. The specific terms of the agreement have not been disclosed, and neither Nirvana and Fisher’s lawyers nor Marc Jacobs’ representatives have commented. On the sidelines of the entire affair, however, it is interesting to note Marc Jacobs’ personal connection with Kurt Cobain and his wife Courtney Love. In 2010, Love revealed that Marc Jacobs had sent her and Cobain his Perry Ellis grunge collection, which they promptly burned – Cobain was not fond of commercial relationships and favor exchanges. Despite this, Love has maintained a relationship with the designer, sitting front row at Jacobs’ fashion shows and appearing in his fall 2016 advertising campaign along with other celebrities.