André J Maré is an executive in the intellectual property department of law firm ENSafrica.

There is an interesting copyright infringement case under way involving the grunge band Nirvana, which was fronted by the now late Kurt Cobain. Yet this case does not involve music copyright. Rather, it deals with copyright in an artistic work, a drawing.

The case has been brought by Jocelyn Susan Bundy. Bundy is the granddaughter of CW Scott-Giles, a heraldry expert who died in 1982. In her court papers, Bundy claims she is the “sole surviving relative and sole successor-in-title to the copyright in the works created by her late grandfather”. Bundy has sued the band, as well as two merchandise companies and an artists’ management company.  

The claim of copyright infringement relates to a drawing made by Scott-Giles in 1949. It depicts “upper hell” in the form of a stack of circles and it was used for an English translation of Dante’s Inferno that was published in the UK in 1949. Dante Alighieri’s poem The Divine Comedy was about the Roman poet Virgil taking Dante on a trip through hell: all three stages of it, Inferno, Purgatorio and Paradiso, terms that require no translation.

Nirvana has apparently been using Scott-Giles’s drawing on its merchandise since 1989, from which we can probably deduce that Bundy isn’t really into grunge and did not share my adolescent taste in T-shirts. And indeed, according to the court papers, Bundy only recently (January 2021) discovered that Nirvana had been using gramps’s drawing on vinyl records, clothing, T-shirts, sweaters, hoodies, key fobs, mugs, patches and buttons (the usual band merchandise, basically) in the US and abroad.

Bundy wants an account of profits and damages. There’s a suggestion that the band has previously been involved in litigation regarding unauthorised use of something a lot less dark than the three stages of hell… a smiley face logo.

Bundy further alleges that Nirvana has been making false claims of ownership in relation to the artwork by applying copyright notices to the merchandise. She says that Nirvana has created a false narrative, one that goes… it was Kurt Cobain who created the drawing. Cobain, of course, took his own life in 1994 so he won’t be available for cross-examination.

We’ll watch this case with interest, although experience tells us that there will be a settlement. But it does provide us with an all-too-rare opportunity to consider some of the fundamental principles of copyright law. Here goes:

Copyright is very broad: The case we’re discussing here involves a drawing, which is simply one form of a very broad and important category of protectable works known as artistic works. There are other categories of works that enjoy copyright and these include written works, musical words, sound recordings, films and computer software.

Graft rather than craft: It doesn’t matter if your drawing, song, book, whatever isn’t very good, what is important is that you created it yourself and didn’t copy it from some other work. Copyright’s pretty egalitarian that way.

There’s no copyright in ideas: This well-known expression simply means that your idea must be expressed in a material form before it enjoys copyright. You can’t just think it.

No need to register: In South Africa, and indeed many other countries, there’s no need to register copyright. Copyright comes into existence as soon as the work comes into existence.

Copyright is universal: Works created in South Africa enjoy, with a few exceptions, copyright throughout the world, and foreign works enjoy protection here.

Copyright lasts for ages: Copyright terms are very long – in some countries 50 years, in others even longer. In the case of something like a drawing, the period will run from the date of death of the artist.

The creator owns the copyright: Except in certain cases, such as where the creator was acting as an employee of a company when they created it – again with certain other exceptions.

Copyright can be sold: Just like any other asset, copyright can be sold to a third party.

Or licensed: The owner can license a third party to use the copyright, and this will generally involve a licence fee.

It’s material: Copyright is infringed when a material part of the work is copied. Material doesn’t mean the major part, simply a significant part.

Is copyright hell or divine? One would expect a group whose very existence is dependent on copyright to respect it more – but as is so often the case, one would be wrong. It is our experience that many a copyright infringement does not have any underlying malevolence but is rather a product of ignorance of the law, and a spiffy design that snowballs and takes on a life of its own.

Be careful, however, if you are caught out, it can become hell. DM