Nirvana Stuck in Lawsuit Over “Nevermind” Album Cover

As James Kachmar previously wrote on the IP Law Blog, the man who was photographed as a naked baby in 1991 for Nirvana's iconic "Nevermind" album cover is now suing the band for distributing child pornography. Scott Hervey and James discuss the Ninth Circuit's opinion on the case in this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here. Show Notes: James: In 1991, the grunge band Nirvana was one of the most popular musical acts in the United States with its anthem “Smells like Teen Spirit”, which was featured on its album Nevermind. Many will remember the cover of that album, which featured a naked baby swimming underwater and reaching for a dollar bill on a fishing hook. Three months after its release, Nevermind rose to the top of the Billboard 200 rankings and since then has sold over 30 million copies. The picture on the album was licensed for use on other merchandise, such as t-shirts, and was also the subject of various parodies. Now, 30 years later, Nirvana, its surviving members, and its record companies face a civil lawsuit for allegedly distributing child pornography by the now-grown man who was depicted on the album cover as a baby. I am James Kachmar from Weintraub Tobin, and I am joining Scott Hervey from Weintraub Tobin to talk about this case on the next installment of “The Briefing.” Scott: James, welcome back to The Briefing. This case, the case of Elden versus Nirvana, has been on my mind since I read your excellent article on the case. Can you give us some background? James: Sure. Scott, the baby in that photo, is now a gentleman. His name is Spencer Elden, and he was four months old at the time the photograph was taken. He turned 18 in 2009 12 years later in 2021, at the age of 30, he filed a lawsuit, and after two rounds of amended complaints, filed a second amended complaint in January 2022. Mr. Elden asserts a single claim against the defendants for a violation of 18 USC section 22 55, which allows victims of child pornography to bring a civil cause of action for their injuries. Scott: And, James, what is the nature of Mr. Elden's complaint? What's it based on? What is it based on? James: Mr. Elden's complaint alleges that the cover of Nevermind depicting him in the nude constitutes child pornography and that the defendants, quote, knowingly possessed, transported, reproduced, advertised, promoted, presented, distributed, provided, and obtained, end quote, this alleged child pornography depicting him. He further alleges that the image has been reproduced and redistributed during the ten years preceding his lawsuit, and since then, pointing out that Nevermind had been rereleased in September 2021, claimed that he had suffered personal injury as a result of the ongoing violations of section 22 55. Scott: So initially, the defendants moved to dismiss Mr. Elden's complaint, arguing that it was barred by the applicable tenure statute of limitations for such claims. The district court agreed with the defendants and dismissed the complaint with prejudice. Mr. Elden appealed that dismissal to the 9th Circuit. And what happened on appeal, James? James: Well, Scott, just days before Christmas last year, the 9th Circuit issued its opinion in Elden versus Nirvana, LLC, and reversed the dismissal of his claims. Importantly, the 9th Circuit, in its decision, did not decide whether the album cover, in fact, constituted child pornography. Rather, it only decided whether his claims were timely. The issue of whether the album cover constitutes child pornography will be decided on remand by the lower court. Scott: So, what was the basis for the 9th Circuit's reversal of the district court's dismissal? James: Well, the 9th Circuit began by examining the text of the statute of limitation provisions in section 22 55, which set forth two pertinent time frames. First, the plaintiff must have been a minor when victimized by the violation,