When Spencer Elden was just four months old, the “grunge rock band” Nirvana used a nude picture of him, which prominently showed his genitals, on the cover of their 1991 album Nevermind. The album went platinum, sold 30 million copies, and generated a host of album cover copies on merchandise including t-shirts and posters.When Elden was 30, he filed a civil action against several band members and record companies as well as the photographer, alleging that when he was an infant, he was a victim of child abuse and child pornography in violation of a section of the U.S. Code.
Defendants included Courtney Love in her own capacity and as executor of the estate of Kurt Cobain, band drummer David Grohl, and band co-founder Krist Novoselic, as well as Universal Music Group, Inc., the David Geffen Company and Geffen Records, MCA Records, and photographer Kirk Weddle.
Presiding District Judge Fernando M. Olguin of the U.S. District Court for the Central District of California dismissed Elden’s suit in 2022 because it was barred by the Code’s 10-year statute of limitations. But the Ninth Circuit on December 21 reinstated Elden’s suit because the photograph had been “republished” many times since the album débuted.
In a unanimous 3-0 opinion, authored by Circuit Judge Sandra S. Ikuta, the Ninth Circuit opinion began with an explanation of 18 U.S.C. § 2255 (b) (1). The Section states, “…a person who, while a minor, was a victim of specified offenses, including child pornography offenses, could bring a civil suit for damages for personal injuries. The suit must be brought within ten years after the later of the violation or the injury “that forms the basis for the claim.”
Elden argued that he had been “expensively exploited by the defendants who have knowingly possessed, transported, reproduced, advertised, promoted, presented, distributed, provided, and obtained commercial child pornography and they have reproduced and redistributed his image several times, causing serious injury including, without limitation, physical, psychological, financial and reputational damages.”
His claim is backed by the extreme popularity of the “iconic” album cover that is now “highly recognizable, and has been displayed in New York’s Museum of Modern Art, and has been referenced, imitated, and parodied. Commentators have suggested that the naked infant reaching for a dollar symbolizes the ills of a capitalistic society.” The plaintiff/appellant argued that republication of the cover within the ten years preceding his suit “is not barred by the statute of limitations in the U.S. Code.”
Ikuta’s opinion focuses on the interpretation of the statute of limitations. She begins with the specifics in the statute’s test: plaintiff must have been a minor when victimized and he must have suffered personal injury, regardless of whether the personal injury occurred when he was an adult. The judge also provided a definition of “personal injury” that was not in the Code, but which she said “has long been recognized as referring to torts or tort-like injuries, including both physical torts and dignitary torts such as defamation.”
She then explained that each republication of criminally offensive material can cause a new injury. She also cited Paroline v. United States, a 2014 U.S. Supreme Court case that held “every viewing of child pornography is a repetition of the victim’s abuse.” This led the Ninth Circuit to 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.”
These precedents led to a discussion of whether Elden’s complaint was actually barred by the U.S. Code’s statute of limitations. The Ninth Circuit considered the timeline of plaintiff’s complaint, which began when he was a minor and continued to cause personal injuries when he was an adult. Even though he failed to file his suit as soon as he, as an adult, “reasonably discovered” the personal injury he was suffering, the allegations of republication in the complaint still made it “timely.” He did file his suit when “he discovered new injuries caused by the Defendants’ actions within the limitations period.”
Ikuta concluded 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.” The district court’s decision was reversed, and Elden, now 34, will have his day in court.
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