Ninth Circuit agrees fight over Nirvana’s use of ‘Upper Hell’ belongs in UK

LOS ANGELES (CN) — A Ninth Circuit panel on Monday upheld the dismissal of a copyright lawsuit over Nirvana's use of a 1949 illustration of "Upper Hell" created by a British artist for an English translation of Dante's "Divine Comedy."

In an unsigned decision Monday, the appellate panel agreed that a federal judge in Los Angeles correctly dismissed the copyright infringement lawsuit by Jocelyn Bundy, the granddaughter and sole heir of C.S. Scott-Giles, because the U.K. courts are a more appropriate forum for her claims over the use of her grandfather's map of hell on Nirvana merchandise.

"Bundy contends that the principal issue in this case is indeed the validity of her U.S. copyright interest, thus precluding U.K. jurisdiction," the panel wrote. "However, the district court correctly concluded that the validity issue here is probably secondary, as the face of Bundy’s complaint suggests that she does not have an enforceable U.S. copyright interest."

An attorney for Bundy didn't immediately respond to a request for comment on the ruling.

According to Bundy's 2021 lawsuit, the late Scott-Giles drew the illustration for the English translation of the first volume of the Dante's trilogy, "Inferno," by his close friend Dorothy Sayers. The U.K. citizen sued after she discovered that Nirvana LLC, a company that handles the licensing and sale of Nirvana-branded merchandise, and Live Nation Merchandise were selling T-shirts, hoodies, key fobs, and mugs with the image.

Bundy also claimed the band Nirvana and its representatives routinely made false claims of ownership of the copyright in the Illustration by placing false copyright notices on the merchandise.

Nirvana and Live Nation Merchandise, a subsidiary of Beverly Hills-based Live Nation Entertainment, argued Bundy's claims should have been brought in the U.K. because she's a British citizen asking a court in California to decide U.S., English and German infringement claims that involve "alleged copyright-creating conduct in England by other British citizens."

"Resolving the claims will require determinations of complex English and German copyright law issues based on decades-old documents and witnesses in England," attorneys for Nirvana and Live Nation said. "Plaintiff’s U.S. copyright infringement claims, in contrast, allege infringement of a work in the public domain in the U.S. since as early as 1949."

U.S. District Judge Dale Fischer agreed to dismiss the lawsuit in part because the defendant companies persuaded her that they would be amenable to service in the U.K and would agree to personal jurisdiction in the U.K. for purposes of the litigation.

The judge acknowledged that it might be more difficult for Bundy to obtain information from the companies with respect to her U.S. copyright claims if she's before a British judge, but noted that the defendants had agreed to voluntarily produce documents and witnesses under their control in the U.S. for use in the U.K. suit.

U.S. Circuit Judges Kim McLane Wardlaw, Bill Clinton appointee, and Lucy Koh, a Joe Biden appointee, and Senior U.S. District Judge Colleen McMahon, a Bill Clinton appointee sitting by designation from the U.S. District Court for the Southern District of New York, made up the panel.

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