Rock band Nirvana has been sued for copyright infringement over their unauthorised use on merchandise of an illustration from a 1949 translation of Dante’s Inferno.

The claim in Los Angeles has been brought by an Englishwoman, Jocelyn Bundy, whose grandfather, C. W. Scott-Giles, drew an illustration of “Upper Hell” as depicted by the Italian poet Dante Alighieri in his “Divine Comedy”. The illustration was created in 1949 to accompany an English translation of the first volume of the trilogy, named “Inferno” or “Hell”, by the English poet and crime novelist Dorothy L. Sayers. Sayers’ “Hell”, with Scott-Giles’ illustrations, first appeared in 1949, as one of the then-recently introduced series of Penguin Classics.

The claim against Nirvana LLC and a number of other defendants alleges that they have been “licensing, promoting, selling, manufacturing, and distributing vinyl records, t-shirts, sweaters, hoodies, key fobs, mugs, patches, buttons, and other merchandise items depicting an image virtually identical to the Illustration both in the US and abroad. ”It goes on to allege both that this unauthorised use dates as far back as 1989 and that the band has made “false claims of ownership of the copyright in the illustration by placing false copyright notices on the infringing products in substantially this form ‘© [Year] Nirvana’.”

Bundy is the only surviving relative of Scott-Giles, who died in 1982, and his successor in title. The use of Scott-Giles’ work by the seminal grunge-rockers only came to Bundy’s attention as a result of a claim brought by the band itself as claimant against fashion designer Marc Jacobs, over his allegedly breaching copyright in their smiley face logo and signature font in a T-shirt design.

In those proceedings, band member Krist Novoselic and manager John Silva said that Nirvana’s “Happy Face” t-shirt was similar to another t-shirt allegedly created by Kurt Cobain, which Nirvana fans refer to as the “Seven Circles of Hell” or “Vestibule” design.

Nirvana’s response to the claim is that the “Upper Hell” illustration is in the public domain and that while the first edition of the Penguin book included a copyright notice stating “Copyright 1949 by Dorothy L. Sayers” the notice wasn’t subsequently registered or renewed with the U.S. Copyright Office.

Bundy’s case is that the illustration is a “foreign work” for the purposes of US copyright law which is protected both in the US and elsewhere. One important issue in the case will be the protection US copyright law provides for a work first published in a foreign country.

Unusually, Bundy has also asked the US court to determine her claim for copyright protection under foreign law, namely the law of the UK and Germany, where, she says, the bulk of the defendants’ infringing activities outside the US are concentrated. There is no requirement in UK copyright law for the formalities such as registration which may need to be undertaken for a work to enjoy protection in the US.

The case looks set to involve an unusually large range of interesting copyright legal issues which could well have significant consequences for copyright law on both sides of the Atlantic. Zoom-in will report on further developments.