The Volokh Conspiracy
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Nirvana Nevermind Cover Baby's Child Pornography Lawsuit Isn't Barred by Statute of Limitations,
the Ninth Circuit rules, though expressly noting that "The question whether the Nevermind album cover meets the definition of child pornography is not at issue in this appeal."
From Elden v. Nirvana L.L.C., decided today by Judge Sandra Ikuta, joined by Judges Bridget Bade and Daniel Bress:
Under 18 U.S.C. § 2255 (2018) 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." {In 2022, Congress passed an amendment to 18 U.S.C. § 2255 (2018) that eliminated the statute of limitations for claims brought under § 2255. The parties agree that the 2022 version of the statute does not apply here.}
Spencer Elden alleges that he was the victim of a child pornography offense when (as a four-month-old baby) he was photographed naked in a pool for the cover of Nirvana's iconic album Nevermind. Now an adult, Elden argues that the continued use of this photo causes ongoing personal injuries. 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 set forth in 18 U.S.C. § 2255(b)(1)(B) (2018)….
In 1987, Kurt Cobain and Krist Novoselic formed the grunge rock band "Nirvana." In September 1991, the band teamed up with a record label to produce what ultimately became the hit album Nevermind. Spencer Elden, who was then four months old, was photographed in a pool for the cover of Nevermind. The released album cover depicts a naked baby, with his penis visible, floating underwater toward a superimposed dollar bill on a fishhook.
The album cover art has become iconic and highly recognizable. It has been displayed in the Museum of Modern Art in New York and has been frequently referenced, imitated, and parodied. Commentators have opined that the naked infant reaching for a dollar symbolizes the ills of a capitalistic society.
Within three months, Nevermind rose to the top of the Billboard 200 ranking and was later certified as a platinum record. Since the album's initial release, the band and the album's producers have sold over 30 million copies of Nevermind and continue to profit from the album's distribution. Separately from selling the album itself, the band and the album's producers have licensed the cover image for various other merchandise, including Snapchat filters, t-shirts, and posters.
Elden turned 18 in 2009. On August 24, 2021, when Elden was 30 years old, he filed this action against the band, its members, and the recording companies (collectively "Defendants")…. The complaint alleges that Defendants violated 18 U.S.C. § 2252A(a), which prohibits (among other things) the knowing possession, access with intent to view, mailing, transportation, shipment, distribution, receipt, reproduction for the purpose of distribution, promotion, presentation, and solicitation through the mails of child pornography using the means or facility of interstate or foreign commerce. The term "child pornography," as used in § 2252A(a), includes any visual depiction involving "the use of a minor engaging in sexually explicit conduct." …
[Under the statute,] a plaintiff may bring a claim within ten years after the date on which the plaintiff reasonably discovers "the injury that forms the basis for the claim." The "injury" is described in § 2255(a) as a "personal injury" suffered as a result of the predicate offense, "regardless of whether the injury occurred while such person was a minor." …
The term "personal injury" has long been recognized as referring to torts or tort-like injuries, including both physical torts and dignitary torts such as defamation. In the context of § 2255, "pornography injures a child's reputation and emotional well-being" just "[l]ike a defamatory statement" and creates "reputational, emotional and privacy injuries" that constitute personal injuries….
Like victims of defamation, victims of child pornography may suffer a new injury upon the republication of the pornographic material. It is well-settled that "[e]very repetition of a defamation is a publication in itself" and that "each and every publication … of a defamatory statement to a third person constitutes a new publication which gives rise to a cause of action." Indeed, "[i]t is the general rule that each communication of the same defamatory matter by the same defamer, whether to a new person or to the same person, is a separate and distinct publication, for which a separate cause of action arises." 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.
This conclusion is consistent with the Supreme Court's view that "every viewing of child pornography is a repetition of the victim's abuse[]" … (stated in the context of claims for restitution under 18 U.S.C. § 2259(a)). Similarly, in the context of considering First Amendment challenges to child pornography laws, the Court has recognized that "[l]ike a defamatory statement, each new publication of the [child pornography depicting the child victim] would cause new injury to the child's reputation and emotional well-being." The online dissemination of child pornography haunts victims long after their original images or videos are created. As the Supreme Court has explained, "[t]he victim's knowledge of publication of the visual material increases the emotional and psychic harm suffered by the child." This is because "[a] child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography." …
According to his complaint, Elden was the victim of violations of 18 U.S.C. § 2252A(a) while he was a minor and suffered personal injuries as a result of the violations during his adulthood….
The allegations in Elden's complaint are enough to render the claim timely under 18 U.S.C. § 2255(b)(1)(B). The complaint alleges that Defendants committed a predicate offense when they "knowingly possessed, transported, reproduced, advertised, promoted, presented, distributed, provided, and obtained commercial child pornography depicting [Elden]." These alleged violations began in 1991, when the photograph was taken, and were ongoing. The violations therefore occurred "while [Elden was] a minor." Elden seeks damages for "personal injuries" he alleges he suffered "as a result of such violation[s]." Elden alleges he suffered the personal injuries "during the ten years preceding this action," including the Defendants' redistribution of the Nevermind album in 2021. Because that and other republications can constitute personal injuries under § 2255(b)(1)(B), Elden had ten years from the date of reasonable discovery of those injuries to file his complaint. Elden's complaint covered only injuries discovered in the preceding ten years, so his claim is timely under 18 U.S.C. § 2255(b)(1)(B)….
Defendants argue[ that] because Elden was aware that the Defendants had committed the predicate offense, and knew about the Defendants' dissemination of the album cover for more than ten years, he cannot claim that he discovered new injuries caused by Defendants' subsequent distributions of the album cover within the ten-year limitations period…. [But i]f 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….
Because Elden's claim is not barred by the ten-year statute of limitations set forth in § 2255(b)(1)(B), the district court erred in granting Defendants' motion to dismiss on statute of limitations grounds….
Again, recall that, as the Ninth Circuit notes, "The question whether the Nevermind album cover meets the definition of child pornography is not at issue in this appeal." (I'm skeptical, since the Nirvana cover doesn't seem to depict "sexually explicit conduct.")
Robert Y. Lewis, James R. Marsh, and Margaret E. Mabie, Marsh Law Firm PLLC, represent plaintiff.
