Judge sends Nirvana copyright case over Dante’s Inferno image to UK
A district judge had dismissed a lawsuit accusing Nirvana of infringing the copyright in an illustration of Dante’s ‘Upper Hell’, after determining that the appropriate forum to litigate the copyright complaint brought by a British individual, is the UK.
The US District Court for the Central District of California made the decision on Thursday, October 21.
Bundy sued Nirvana in April 2021. At the centre of the lawsuit was an illustration that plaintiff Jocelyn Bundy’s grandfather, CW Scott-Giles, drew in 1949, depicting a map of ‘Upper Hell’. Scott-Giles created it for an English translation of the first volume of Dante’s literary trilogy “The Divine Comedy”.
Bundy alleged that Nirvana and global entertainment company Live Nation Entertainment have been using an image “virtually identical” to the illustration on merchandise that is being sold in stores around the world, including in H&M and Walmart.
Nirvana has “stripped” the illustration of its copyright management information and replaced it with false information identifying Nirvana as its owner, according to Bundy.
Scott-Giles died in 1982 and Bundy is the successor-in-title to the copyright in his works. As UK copyright law protects works automatically for 70 years after the death of the creator, the illustration is protected by UK copyright until 1952, Bundy said.
She noted that the same principle applies in Germany and the “bulk” of Nirvana’s infringing products sold outside of the US are in the UK and Germany.
Meanwhile, the illustration is a “foreign work” for the purpose of US copyright law, similarly allowing it to enjoy protection until 2052.
Bundy had asked that Nirvana be enjoined from further infringing activities. She also requested a full accounting of profits attributable to the infringing conduct, as well as damages and costs.
In August, Nirvana filed a motion claiming that California is not the appropriate jurisdiction for this dispute to be adjudicated.
Nirvana said that the copyright infringement claims relating to English and German law raise “complex legal issues” that predominate the “tenuous, if not frivolous” copyright complaints relating to US copyright law.
On Thursday, the US District Court for the Central District of California agreed with Nirvana.
Inge De Bruyn, an attorney at Modo Law representing Bundy, told WIPR: "We are disappointed with the court’s ruling and are currently considering all options, including an appeal."
District judge Dale Fischer noted that the work relied upon by Bundy is protected by UK copyright and that the UK is likely to have a stronger interest in the matter and be better equipped to adjudicate it by way of material witnesses residing within the jurisdiction.
“The face of Bundy’s complaint makes clear that the UK offers adequate relief for her copyright claims,” Fischer said. He added that the “potential relief available in a UK court may not be what Bundy envisioned when she filed her claim in the US district court”.
He dismissed Bundy’s lawsuit on the conditions that Nirvana agrees the UK has jurisdiction if Bundy proceeds to file a suit for copyright infringement in the UK, and the rock band must satisfy any UK judgment given in the matter.
Nirvana has been invited to indicate whether it will accept the above conditions by November 1, 2021. The dismissal is also contingent on the UK’s acceptance of jurisdiction, including in relation to the US elements of the copyright complaint.
