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Questions & Answers — Copyright Column Column Editor: Will Cross (Director of the Open Knowledge Center and Head of Information Policy, NC State University Libraries) <wmcross@ncsu.edu> ORCID: 0000-0003-1287-1156 QUESTION: A media librarian asks, “What is the status of the recent Nirvana copyright lawsuit?” ANSWER: It turns out that there are not one but two ongoing copyright lawsuits involving the 90s grunge band Nirvana. In April of this year, it was reported that Nirvana was being sued for infringing on an illustration first published in a 1949 English language translation of Dante’s “Inferno.” In Bundy v. Nirvana LLC, the British descendant of the original artist claims that the popular image of the circles of Hell that has been featured on Nirvana’s merchandise for several decades was created and copyright belonged to her grandfather C.W. Scott-Giles. ScottGiles drew the illustration in 1949 to accompany an English translation of Dante’s “Inferno” by Dorothy L. Sayers. The case raises a host of deeply technical issues related to whether the work is protected by copyright in the United States. The illustration was first published in a book that did not include copyright notice as required under United States copyright law of the era. As a result, Nirvana argues that the work entered the public domain when published without notice under the 1909 Copyright Act. Bundy, however, is relying on a controversial Ninth Circuit case, Twin Books v. Walt Disney Co., which involved the novel “Bambi, a Life in the Woods,” first published in Germany in 1923
Against the Grain / June 2021
without copyright notice. She argues that the work is in fact unpublished under U.S. law and thus qualifies as an “unpublished foreign work” that does qualify for protection. In addition, she argues that even if the illustration had previously fallen into the U.S. public domain, its copyright has since been automatically restored pursuant to the Copyright Restoration Act. She also notes that Nirvana “routinely made false claims of ownership” by removing the title and Scott-Giles’ credit line from merchandise bearing the illustration and replacing them with a notice claiming that Nirvana itself controls copyright. As a result, Bundy raises a separate claim against Nirvana under Section 1202 of the Copyright Act, which prohibits the knowing falsification, removal or alteration of “content management information” (CMI) with the intent to conceal infringement. If your eyes are already starting to glaze over, it may be helpful to refer to one of the most often-used cheat sheets in copyright, Cornell’s “Copyright Term and the Public Domain in the United States” chart: https://copyright.cornell.edu/publicdomain. For more in-depth discussion of these very technical issues, I also recommend reading the thoughtful and engaging tour through the “7th Circle of Copyright Hell” from the always-enjoyable Copyright Lately Blog: https://copyrightlately.com/foreign-worksus-rights-the-7th-circle-of-copyright-hell/.
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