Songs from Nirvana’s sophomore album “Nevermind” blared over speakers in a sweeping Seventh Avenue showroom in November 1993 as models like Carla Bruni, Christy Turlington, Kate Moss, Tyra Banks, Shalom Harlow, and Kristen McMenamy stormed the runway in an assortment of garments and accessories that closely mirrored those that would normally be found on grungy youths in cities like Seattle, Washington – albeit these would come at eye-popping prices. The collection – which was the work of a 29-year old Marc Jacobs during his tenure at Perry Ellis – was criticized by influential editors, fashion critics, and rocker Courtney Love, alike, and would ultimately get him sacked from his role as creative director.
Twenty-five years after he made headlines for what critic Suzy Menkes characterized as a “ghastly” collection of garments, what Cathy Horyn did not mince words in calling “ridiculous” given the price points, and which Courtney Love and Kurt Cobain destroyed when samples were sent to them by Jacobs (“We burned it. We were punkers – we didn’t like that kind of thing,” Love revealed in 2010), Marc Jacobs rolled the dice on the controversial collection again. In a lookbook released in November 2018, Jacobs presented a “Grunge Redux” collection under his own name, and while the nostalgia-soaked wares did not get him ousted from his LVMH-owned eponymous brand, one specific offering proved to be contentious, and this time it was problematic from a legal perspective.
Mixed in among the crocheted sweaters, slinky spaghetti-strapped dresses, and flannel shirts layered over cargo pants that comprised Marc Jacobs’ rebooted Grunge collection was a sweatshirt that says “Heaven.” Even more eye-catching than the bold, yellow block-lettered word, itself, was the bright yellow smiley face positioned right below it.
That smiley face graphic – from the marigold hue to the squiggly mouth and the defiantly protruding tongue – had been seen before: it is a dead-ringer for the one that has been associated for more than three decades with Nirvana, the band that got its start when Kurt Cobain – the young, unkempt frontman known for his ravaged blonde locks, gender-bending grunge attire, and sonic guitar skills and vocals – and Krist Novoselic – the towering Gibson Ripper-playing bassist, who stands at a staggering 6’7”, and served as Cobain’s longest musical partner – first came together in Aberdeen, Washington in 1987 to start a band.
The marked similarity between the smiley face that appears on Marc Jacobs’ wares and the cult graphic created by Cobain in the early 1990s is precisely what landed the famed fashion brand on the receiving end of a federal trademark and copyright infringement lawsuit not long after its “Redux” lookbook began to make the rounds online.
In a highly-publicized lawsuit filed in California federal court in December 2018, Nirvana L.L.C. claimed that by using its smiley logo in the collection and as part of a “wider campaign” to promote it (which also saw the brand use lyrics from Nirvana songs, such as “Come as you are,” in ads for the collection, and displaying “memes,” such as one “from a video of Nirvana and its co-founder and singer Kurt Cobain performing ‘Smells Like Teen Spirit’” on its social media accounts), Jacobs was running afoul of federal trademark and copyright law.
Looking beyond the striking allegations in that still-ongoing lawsuit, which center on Marc Jacobs’ allegedly “oppressive, fraudulent, and malicious conduct” and the “irreparable injuries” it has caused Nirvana L.L.C. as a result, the case is noteworthy for a more fundamental reason … because of the party that filed it: Nirvana L.L.C., the nearly 25-year old entity that is tasked with controlling a bounty of world-famous, highly influential, and wildly valuable assets of what it calls “one of the most famous and influential rock bands in history.”
No stranger to litigation, Nirvana L.L.C. has a history riddled with high-stakes fights. However, one scuffle, in particular, stands out: the “epic legal battle” that pitted the members of the L.L.C. against one another and threatened the future distribution of the band’s existing hits, and maybe even more significantly, the hefty trove of previously unreleased gems from the band responsible for heralding the alternative rock revolution.
That headline-making clash was described at the time as likely to be “even nastier than the notorious feuds for control of the posthumous careers of Jimi Hendrix or Bob Marley,” and in some respects, it very well may have been.
The Fight for Nirvana
The fight for Nirvana started 20 years before Marc Jacobs put that specific smiley face graphic – one so inextricably tied to Nirvana that its appearance, alone, without the Nirvana name conjures up a single source in the minds of consumers across the globe – on sweatshirts bearing his name (and his initials, which stand in for the X’s for eyes found in Nirvana’s original logo). The roots of what would become a multi-lawsuit battle date back to the late 1980s when 20-year old Kurt Cobain teamed up with high school pal Krist Novoselic, then 22, to form what would become one of the most iconic bands in the entire world.
Following the swapping in (and out) of a handful of percussionists during their earliest years, the formal addition of bombastic drummer Dave Grohl in 1990 proved to be the missing link, and within a matter of months, Nirvana would be catapulted to worldwide fame, thanks, in large part, to their 1991 single, “Smells Like Teen Spirit.” The album’s opening track made its way to the top of charts in the U.S. to ones in Europe, all the way to those in New Zealand, and their second-ever album “Nevermind” went right along with it, selling some 300,000 copies per week at its peak and earning the title of one of the most influential releases in rock history.
Three years after the debut of “Nevermind” and its earth-shatteringly popular single, Nirvana’s members were living in a reality in which they were at center of the cultural psyche, having helped to “fundamentally shift the foundations of rock and popular culture,” as MTV put it some years ago. Their trajectory was, of course, irreversibly altered when Cobain tragically took his own life in April 1994 at age 27, and the group disbanded.
In the wake of Cobain’s death, surviving Nirvana members Grohl and Novoselic, along with Cobain’s widow Courtney Love – who was tasked with overseeing the Cobain estate, including a trust for their 20 month old daughter Frances Bean Cobain, as well as a bulk of the ownership rights in Nirvana’s music catalog, among other assets, as his heir – came together to figure out how they would manage the enduring business dealings of the cultural phenomenon that is Nirvana.
A 3-year-long period of negotiations that were said to have involved more than a half a dozen top music attorneys paved the way for the creation of Nirvana L.L.C.
“The formula is simple,” Novoselic wrote in an article after the formation of the Washington-based limited liability company in September 1997. He, Grohl, and Love were respectively granted equal, one-third stakes in the L.L.C., and together, they would equally control the posthumous releases of the band’s music, and the commercial uses of its other intellectual property, such as copyright-protected imagery and various trademarks. “On administrative matters, there needs to be a majority vote. In regards to [the use of Nirvana] assets, there needs to be a unanimous vote,” Novoselic stated.
(As the head of the Cobain estate, Love had the exclusive say over the use of Kurt’s likeness since some states, such as California, provide a right to control the commercial uses of a person’s identity, from his/her name and image to his/her voice – a significant aspect in this case – after their death.)
When it came to control over Nirvana’s assets, the stakes were (and continue to be) high. While Nirvana may have ceased to exist in its original capacity after Cobain’s death (and as Love would later argue, the band was actually on the verge of a break prior to Cobain’s death), the demand for their already-released music would endure; in fact, as of the 25th anniversary of Cobain’s death, surveys showed that the impact of the group and its music was stronger than ever. (In a testament to the group’s prevailing appeal, in December 2019, the video for the seminal grunge song – which was actually uploaded to YouTube 15 years after Cobain’s death – had amassed 1 billion views on the platform.)
Beyond that, though, Cobain was survived by “a considerable legacy of B-sides, compilation tracks, unreleased songs, demos, and live recordings,” Jim DeRogatis wrote for Spin Magazine in 2002. Between the existing music and the previously unrealized songs, he left behind the seemingly unending capacity for Nirvana to earn tens of millions of dollars in annual music royalty revenue.
With the potential for billions of dollars in earnings at play and without a uniform plan for how the band’s business and legal affairs would be handled in Cobain’s absence, “many issues were left unresolved,” Love stated a few years later. And those issues would not be settled in a harmonious manner.
In fact, formalizing the L.L.C. would prove to be complex and contentious. In addition to the specific dollar sums at issue and the expansiveness of the unreleased recordings that Cobain left behind (the depth of his unreleased catalog is “astonishing” and unmatched in scope by any late musician, according to Love) was a complicated question that had to be answered: “What exactly was ‘Nirvana’? Was it Cobain and his songs, or was it the unique collaboration of three talented individuals?” That is how DeRogatis aptly summarized the issue at the heart of the fight for Nirvana.
The terms of the legally binding L.L.C. agreement defined the band as the latter.
Problems Ahead
Despite the lengthy negotiation period that preceded the creation of the L.L.C., it would soon become very clear that problems were already beginning to surface.
In 1998, a year after the L.L.C. was established, the three members “signed an amendment to [Nirvana’s] contract, agreeing to deliver a box set [in exchange] for greater controls over licensing and better royalty rates,” according to Novoselic. Their label Geffen/Universal Music Group (“UMG”) intended to make good on that, and so, Grohl and Novoselic green-lighted a set of 45 Nirvana recordings for a boxed set that was slated for a fall 2001 release to coincide with the 10-year anniversary of the band’s second album “Nevermind.” Love, however, was standing in the way.
The conflict that pitted Love against Grohl and Novoselic over the release would ultimately escalate in May 2001 when Love formally called foul by way of a lawsuit, naming Grohl and Novoselic as defendants, and asserting that “the parties [had] fundamentally different concepts of how to manage the musical and artistic legacy of Kurt Cobain.”
Love claimed that there was a “recognized inability to exchange ideas on how to maximize the artistic and economic value of the legacy (or even meaningfully discuss the management of alleged L.L.C. assets),” and as a result, “it [was] no longer practicable to carry on the essential purpose of the L.L.C..” She wanted the arrangement dissolved for good.
While the “breakdown in communication” over the release of the box set might have been the straw that prompted litigation, at the center of the fight – which would turn out to be ugly and very public – was a much bigger issue: control.
(The contract amendment would spawn separate claims in an already-pending suit that Love filed in response to a contract case waged against her by UMG as the lead singer of alternative rock band Hole. Love countersued in a California state court in October 2001, asking the court to bar UMG from distributing any music by Nirvana, and to order the label to return to her the masters of all Nirvana’s music. Her reasoning? UMG had “improperly acquired” both Hole and Nirvana’s contracts when it acquired Geffen Records, the label Nirvana and Hole both signed with in the late 1980s/early 90s. As such, the deals were void, Love argued. That case would ultimately settle in the fall of 2002, according to a rep for UMG, thereby, enabling the label to release a number of Nirvana albums.)
All the while, Love argued in the complaint that she filed in a Seattle, Washington state court in the spring of 2001 that Cobain’s former band mates had taken advantage of her. Or … to put it in her words in a Spin interview in June 2002, “Krist and Dave fucked me!”
After being shown “incomplete and inaccurate financial records reflecting the band’s purported assets … at a time when [her] judgment had been significantly impaired,” and having been given “bad legal advice” about whether or not Grohl and Novoselic could force a ‘buy out’” of the rights she inherited from Cobain, Love said she signed the L.L.C. agreement. But in the wake of the formation of the L.L.C., Love claimed that the (alleged) “collusion,” “bad faith” dealings, and “misrepresentation” that went into the making of the legal entity came to light, and she wanted out. To be exact, she argued in her lawsuit that Nirvana L.L.C.’s 3-way ownership split failed to take into account a significant change in the rights/ownership structure of the band that took place two years before her late husband’s untimely death.
While the three band members initially split their earnings and their rights in the music evenly, with Cobain, Novoselic, and Grohl each taking one-third of things like their songs’ royalties, a shift in the band’s behind-the-scenes structure took place in the spring of 1992.
In light of the smashing success that was the release of “Nevermind,” Nirvana’s second album, Cobain – who wrote nearly all of Nirvana’s songs – decided that he wanted more than what was being given to him. Instead of the 3-way split, he demanded that the breakdown go like this: he would receive 75 percent of the band’s royalties for the song recordings. He also wanted total ownership in Nirvana’s song lyrics – which in accordance with U.S. copyright law, enjoy protection that is distinct from and additional to protection of the songs’ recordings – going back to the start of the band.
“From then on, [Cobain] received 91 percent of the band’s songwriting royalties. The second biggest chunk, 5 percent, went to [early drummer Chad] Channing, while Grohl and Novoselic got 2 percent each,” according to DeRogatis. The new ownership structure cost Grohl and Novoselic “millions of dollars” each (at least), and while they agreed to the new terms in order to keep the band from losing its frontman, they reportedly harbored suspicions that Cobain’s quest for greater ownership was the result of pressure from his new wife, Courtney Love. (Counsel for Love has since denied this).
Matters would prove to be complicated further by the fact that not everything in the Nirvana universe was divided in the same way. The band’s formal legal structure (i.e., the way that the business was categorized for tax purposes) was that of a general partnership, and tour revenues and “business concerns like merchandising” were split evenly among the three musicians. It was on this basis that Los Angeles-based music business attorney Jill Berliner structured the L.L.C.
Berliner claimed that this structure was “a natural extension of the band’s working relationship,” but Love was not convinced. In addition to accusing Berliner of significantly favoring Grohl and Novoselic, as opposed to the Cobain estate, in large part because she served as attorney for Grohl and Novoselic (in their individual capacities), as well as the legal representative for the L.L.C. as a whole, Love argued than an even split among Grohl, Novoselic, and herself for ownership of and control over the L.L.C. was inappropriate, as it failed to honor how the band “really worked” – with Cobain as the founder, frontman, and leader.
“Kurt Cobain was Nirvana,” Love famously stated in furtherance of her effort to get the court to dissolve the L.L.C. in its entirety. She argued that the L.L.C. agreement was invalid “on the grounds of misrepresentation, mistake, estoppel, indefinite terms, failure of mutual assent, lack of capacity of a party, breach of the duty of good faith and fair dealing, and undue influence,” and so, too, was the L.L.C. that gave Grohl, Novoselic, and Love equal rights in the band’s assets.
Beyond seeking that sole control over Cobain’s assets be reverted back to his heirs (namely, herself and their daughter), Love wanted to legally block any further releases of Nirvana music, including, of course, the box set, and her play for control initially proved successful.
By way of a preliminary injunction issued in June 2001, Judge Robert Alsdorf of the Superior Court of Washington for King County formally prohibited the defendants from “destroying, degrading, altering, modifying, adding to or subtracting from any of the recordings of Kurt Cobain or Nirvana” for the duration of the litigation, notably bringing the 10th anniversary box set release to a screeching halt, along with the distribution of unreleased songs, such as “You Know You’re Right,” which is believed to be the last song recorded by Cobain.
Love’s preliminary injunction win did not come without pushback from Grohl and Novoselic, who filed a countersuit in December 2001, setting forth claims of tortious interference and trademark infringement against Love, and accusing her of “trying to seize control of the trio’s recordings for her own financial gain,” as the Los Angeles Times reported at the time.
In their suit, the two musicians not only denied the bulk of the assertions that Love made against them in her suit, they argued that “the band Nirvana was a valid legal partnership among Grohl, Novoselic and Cobain,” and that Love was an “incompetent” member of the valid L.L.C., and thus, should be removed from it and replaced with another representative for Cobain’s estate.
And while they were at it, Growl and Novoselic urged the court to require Love to undergo a psychiatric evaluation on the basis of a provision in the L.L.C. agreement that gave the individual partners the ability to request that another’s mental health be evaluated for competency. (Such an evaluation would never come to be, with Judge Alsdorf holding that it would “serve no purpose other than to contribute a circus-like atmosphere” to legal proceedings).
The two musicians echoed a handful of the claims that they made in their complaint in an open letter addressed to “Nirvana fans” on December 12, the same day as their countersuit was filed. In a nearly 1,000-word letter, Grohl and Novoselic spoke to their “obligation to preserve the legacy of Nirvana’s music” in the aftermath of Cobain’s suicide, asserting that they “will always be proud of the music we made with Nirvana” and were working to “enhance rather than exploit the memory and image of Nirvana.”
On the other hand, they argued that their Nirvana L.L.C. partner Courtney Love, who was “pasting herself into music she didn’t write or perform … couldn’t care less about Nirvana fans,” and instead, was “using our music as a bargaining chip to increase leverage for her personal gain, without any regard for the Nirvana legacy.”
The next day, on December 13, Love released a letter of her own about the matter, which she said “should have been a private business negotiation [but instead] has become a very public lawsuit.” In her letter, Love asserted that“Kurt Cobain named the band, hired its members, played guitar, wrote the songs, fronted the band onstage and in interviews, and took responsibility for the band’s business decisions.” He “wrote almost all of Nirvana’s music,” the letter continued, with “over 93 percent of the band’s song copyrights are in his name.”
As for the alleged partnership among Cobain, Grohl, and Novoselic, the letter claimed that “Cobain refused to sign a partnership agreement with the other members of Nirvana when he was alive, so any claims that the band was a ‘partnership’ are at best revisionist history,” and that “the partnership agreement that exists now was forced upon Kurt’s heirs.”
Despite such public-facing squabbles and “the talking tough [by their respective lawyers, who were] itching for a fight,” DeRogatis wrote in 2002, “at times, both [sides] seemed willing to settle.” In fact, not long after Love and the surviving member of Nirvana swapped letters, Love proposed a settlement offer to Grohl and Novoselic in furtherance of which “she, Grohl, and Novoselic [would] continue to equally share profits from merchandise that bears the likenesses of all three members and recording royalites from songs they all played on,” as reported by Spin.
They would equally dictate how to handle “the content of new Nirvana releases, and Grohl and Novoselic would have veto power over merchandising, and the licensing of songs to movies or commercials,” but … Cobain’s estate would have the sole right to release his own demos under the Nirvana name. Finally, Cobain’s daughter Frances Bean would be given “all control of the band’s future after Grohl and Novoselic die.”
That settlement hardly put the parties’ legal feud to rest. In reality, Grohl, and Novoselic’s attorney did not even respond to the offer, “scoffing at the suggestion that it was reasonable.”
That failed attempt at settlement did not prevent the three L.L.C. members from ultimately making peace, though, particularly as the trial date began to loom even larger. As is so often the case, just ahead of the start of trial, the parties released a statement revealing that they had worked out their differences. In this case, it was September 29, 2002, the day of the start of trial when Grohl, Novoselic, and Love asserted a joint statement, saying, “We have settled our lawsuit … We are pleased that these issues have been resolved positively and we can move on.”
The news came weeks after Love had hinted during an interview on the Howard Stern Show that a resolution was in the works. She told Stern that she and the surviving members had come to a resolution involving “lots and lots of money” and noting, in connection with the 10th anniversary release, that fans would “get the new Nirvana record at Christmas.”
While the terms of the agreement, itself, have largely been kept confidential, counsel for Novoselic and Grohl stated at the time that the settlement terms “is obviously great news for Nirvana fans.” Love’s attorney Yale Lewis revealed that the deal means that “the parties have agreed to a new way of doing business, which should be beneficial to everyone.”
That new way of doing business has not been set forth in significant detail. However, what has been made clear is that it paved the way for the release of a Nirvana greatest hits album and the highly-anticipated box set, which ultimately came in 2004. It also set the stage for the collective enforcement of Nirvana’s valuable intellectual property rights, such as the suit that the L.L.C. filed against Marc Jacobs over the band’s smiley face.
As for Love, Grohl, and Novoselic, they managed to make peace, taking the stage together in 2014 when Nirvana was inducted into the Rock and Roll Hall of Fame.
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