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Ninth Circuit Revives Action Over Nirvana’s Album Cover
Says Action Based on Nude Photo of Plaintiff in 1991, at Age of Four Months, Is Not Time-Barred
By a MetNews Staff Writer
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—CN The photo used for the cover of Nirvana’s 1991 album "Nevermind," included as an exhibit in Spencer Elden’s child pornography lawsuit against the band and record label.
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The Ninth U.S. Circuit Court of Appeals yesterday ordered reinstatement of a man’s 2021 lawsuit based on the use of a photograph of him on the cover of the band Nirvana’s 1991 album “Nevermind” taken when he was four-months old, depicted unclothed in a swimming pool, with the panel holding that the action is not time-barred in light of republications of the image.
Spencer Elden brought suit under 18 U.S.C. §2255 which provides a cause of action for a person who, as a child, was a victim of enumerated crimes, including child pornography. As then worded, the statute set forth these limitations periods:
“(1) not later than 10 years after the date on which the plaintiff reasonably discovers the later of [¶](A) the violation that forms the basis for the claim; or [¶] (B) the injury that forms the basis for the claim; or [¶] (2) not later than 10 years after the date on which the victim reaches 18 years of age.”
Elden brought his action at age 30.
District Court Judge Fernando M. Olguin of the Central District of California on Sept. 2, 2022, dismissed the second amended complaint with prejudice, finding that Elden’s claims are extinguished.
Ikuta’s Opinion
In her opinion reversing the dismissal, Ninth Circuit Judge Sandra S. Ikuta said:
“We hold that, because each republication of child pornography may constitute a new personal injury, Elden’s complaint alleging republication of the album cover within the ten years preceding his action is not barred by the statute of limitations.”
Defendants include singer Courtney Love, widow of Nirvana’s frontman and co-founder, Kurt Cobain, in her capacity as executor of his estate. Also sued are Nirvana, L.L.C., Universal Music Group, Inc., UMG Recordings, Inc., The David Geffen Company, Geffen Records, MCA Records, Inc., photographer Kirk Weddle, band co-founder Krist Novoselic, and Nirvana drummer David Grohl.
In their appellate brief, the defendants/appellees proclaimed:
“The subject photograph of Elden as a four-month-old infant is one of the most famous photographs of all time. The album cover art is part of the permanent collection of the Museum of Modern Art in New York. Scholars have opined that the innocent, naked infant reaching for a dollar symbolizes the ills of a capitalistic society, which demands the pursuit of money from the time one leaves the womb. The cover art and the album title speak to the irony of a counter-culture ‘grunge’ band deciding to chase the money by signing with a major record label.”
Likened to Defamation
Ikuta said in yesterday’s decision:
“Like victims of defamation, victims of child pornography may suffer a new injury upon the republication of the pornographic material….Accordingly, we conclude that each republication of child pornography can constitute a new personal injury analogous to injuries caused by defamation and other dignitary torts.”
She said that “conclusion is consistent” with the view expressed in the Supreme Court’s 2014 opinion in Paroline v. United States that “every viewing of child pornography is a repetition of the victim’s abuse.”
The jurist added:
“[W]e hold that if a predicate criminal offense occurred when the plaintiff was a minor, the statute of limitations does not run until ten years after the victim reasonably discovers a personal injury resulting from the offense, which may include republication of the child pornography that was the basis of the predicate criminal offense.”
Meaning of ‘Discovery’
The defendants, in their brief, quoted Black’s Law Dictionary as defining “discovery” as “[t]he act or process of finding or learning something that was previously unknown.” They argued:
“As both a matter of law and common sense, Elden’s reasonable discovery of his injury by this group of Appellees who are alleged to have engaged in one, continuous course of conduct must be a one-time occurrence, which establishes his knowledge of his injury, on a going-forward basis, for the rest of time. For example, where a victim accuses an offender of ‘possession’ of his image, the victim does not ‘discover’ he has been injured by the offending possession anew, on each day the conduct continues. If the same offender who possesses an image of the plaintiff continues to possess the image across multiple days, a victim who discovered the offender’s possession on day one does not thereafter ‘lose’ his knowledge and then ‘re-discover’ the same continuing conduct being committed by the same offender again the next day.”
Rejecting that argument, Ikuta said:
“If a victim learns a defendant has distributed child pornography and does not sue, but then later learns the defendant has done so again many years later, the statute of limitations in § 2255(b)(1)(B) does not prevent the plaintiff from bringing a claim based on that new injury. The Defendants’ contention that the injury from a defendant’s renewed distribution of child pornography is ‘a one-time occurrence’ is in tension with Congress’s determination that personal injuries can occur after the initial offense when the victim is no longer a minor.”
Ikuta said in a footnote:
“The question whether the Nevermind album cover meets the definition of child pornography is not at issue in this appeal.”
The statute now says, under a 2022 amendment:
“There shall be no time limit for the filing of a complaint commencing an action under this section.”
In another footnote, Ikuta said the parties were in agreement that the amendment is not retroactive.
Under §2255, a plaintiff “shall recover the actual damages such person sustains or liquidated damages in the amount of $150,000, and the cost of the action, including reasonable attorney’s fees and other litigation costs reasonably incurred,” adding that “[t]he court may also award punitive damages and such other preliminary and equitable relief as the court determines to be appropriate.”
The defendants have argued that Elden has suffered no harm. In their brief, they said:
“Throughout his life, Elden told others—including the press, talk show hosts, and colleagues—that he was the baby on the ‘Nevermind’ album cover. He enjoyed the fame that came with that revelation. He liked to joke to strangers, particularly of the opposite sex, that his penis was world-famous. Elden sold autographed copies of the album cover. He re-enacted the same photograph as a teenager and as an adult, in exchange for a fee.”
They quoted him as telling The Guardian in 2015:
“It is a weird thing...being part of such a culturally iconic image. But it’s always been a positive thing and opened doors for me.”
The case is Elden v. Nirvana L.L.C., 22-55822.
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