In 1991, the grunge band, Nirvana, was one of the most popular musical acts in the U.S. with its anthem Smells Like Teen Spirit, which was featured on its album, Nevermind. Many will remember the cover of Nevermind that 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 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 distributing child pornography by the now-grown man who was depicted on the album cover.

The baby in that photo is Spencer Elden, who was four months old at the time the photograph was taken. He turned 18 in 2009. In 2021, at the age of 30, he filed his lawsuit and after two rounds of amended pleadings, filed a second amended complaint in January 2022. Mr. Elden asserts a single claim against the defendants for violation of 18 U.S.C. § 2255, which allows victims of child pornography to bring a civil cause of action.

Mr. Elden’s operative complaint alleges that the cover of Nevermind depicting him in the nude constitutes child pornography and that the defendants “knowingly possessed, transported, reproduced, advertised, promoted, presented, distributed, provided and obtained” this alleged child pornography depicting Mr. Elden. He further alleges that the image had been reproduced and redistributed during the “10 years preceding this action and since,” pointing out that Nevermind had been re-released in September 2021. He claimed that he had suffered personal injury “as a result of each defendant’s ongoing violation.”

The defendants moved to dismiss Mr. Elden’s complaint, arguing that it was barred by the applicable 10-year 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 Ninth Circuit Court of Appeal. Days before Christmas 2023, the Ninth Circuit issued its opinion in Elden v. Nirvana, LLC, et al., and reversed the dismissal of Mr. Elden’s claims. Importantly, the Ninth Circuit in its decision did not decide the issue of whether the Nevermind album constituted child pornography, only whether Mr. Elden’s claims were timely. The issue of whether the album cover is child pornography will be decided on remand by the lower court.

The Ninth Circuit began by examining the text of the applicable statute, which set forth two pertinent time frames: (1) “the plaintiff must have been a minor when victimized by the violation [such as distribution of child pornography];” and (2) “the plaintiff must have suffered `personal injury as a result of such violation regardless of whether the injury occurred while such person was a minor.’”  The Ninth Circuit made clear that while the violation of the criminal law must have initially occurred while the plaintiff was a minor, the plaintiff could pursue a claim for personal injury that did not occur until the plaintiff was an adult.

The Ninth Circuit continued by recognizing that section 2255(b) contained the pertinent statute of limitation for such claims. First, a plaintiff could bring a claim “within 10 years after the date on which the plaintiff reasonably discovers the violation that forms the basis for the claim.” Or, second, “a plaintiff may bring a claim within 10 years after the date on which the plaintiff reasonably discovers `the injury that forms the basis for the claim.’”  As mentioned above, the “personal injury” reflected in this portion of the statute could occur while the plaintiff was an adult and is not necessarily limited to injury that occurs while a plaintiff is still a minor.

The Ninth Circuit then examined various types of “personal injury” the victim of child pornography may sustain, such as injury to “a child’s reputation and emotional well-being.”  The Ninth Circuit continued by drawing an analogy to the reputational harm suffered by a plaintiff who is the victim of defamatory statements. In using this analogy, the Ninth Circuit pointed out that victims of child pornography, like someone who is defamed, “may suffer a new injury upon the republication” of the offensive material. The Ninth Circuit concluded that this approach was consistent with the U.S. Supreme Court’s reasoning in Paroline v. United States, 572 U.S. 434, 457 (2014), that “every viewing of child pornography is a repetition of the victim’s abuse.”

The Ninth Circuit concluded that with regard to Mr. Elden’s claims, “[w]e hold that if a predicate criminal offense occurred when the plaintiff was a minor, the statute of limitations does not run until 10 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.” 

With the above guidance in mind, the Ninth Circuit then turned to Mr. Elden’s claims. The Ninth Circuit first recognized that there was no dispute that Mr. Elden was aware of the distribution of the Nevermind cover starting at a very young age and thus could reasonably discover any additional violations of section 2255(A)(a) as they occurred. Thus, to the extent a violation occurred in 2009 when Mr. Elden turned 18, he would have had to bring his action by 2019 to avoid the 10-year bar under the first prong of the statute of limitations provision. Had the statute only contained this type of statute of limitation, Mr. Elden’s claims would likely have been barred.

However, the Ninth Circuit turned to the second prong of the statute of limitations provision, which allows a complaint to “be brought within 10 years from the date on which the plaintiff reasonably discovers the personal injury that forms the basis for the claim.”  Under this prong, the Ninth Circuit concluded that Mr. Elden had timely alleged a claim for violation of 18 U.S.C. 2255. While Mr. Elden alleged that the violations began in 1991 when the photograph was taken, and he was a minor, he had alleged “personal injuries” during the 10 years immediately prior to his filing of the lawsuit, which included the re-release of Nevermind in 2021. The Ninth Circuit concluded that because that and other republications after 2011 could give rise to personal injuries under the second prong, Mr. Elden “had 10 years from the date of reasonable discovery of those injuries to file his complaint.” Under this approach, the Ninth Circuit concluded that his complaint was timely.

The Ninth Circuit rejected the defendants’ claim that the statute of limitations for violations section 2255 should run against a particular offender when a plaintiff “knows that that particular offender is responsible for the predicate offense and subsequent injuries.”  The Ninth Circuit disagreed with this approach and found that it was “not supported by the statute’s text, which does not differentiate between the original offender and other parties.”  The Ninth Circuit concluded that: “Logically, the child pornography victim suffers the same injury whether a new individual or the original creator redistributes the image.”

The Ninth Circuit also rejected the defendants’ contention that sought to analogize the case to those “cases examining whether a plaintiff’s discovery of the full extent of the injury stemming from the original injury gives rise to a new cause of action after the statute of limitations for bringing a cause of action for the original injury has run.”  The Ninth Circuit reasoned that the issue was not similar to those other cases in which a plaintiff may not have discovered all of the “latent effects” of the initial violation, which would not amount to a new injury. Rather, the Ninth Circuit found that Mr. Elden was alleging “new injuries stemming from the defendants’ redistribution of the album cover during the 10 years prior to” the filing of the lawsuit, which would be within the statute of limitations period.

Finally, the Ninth Circuit rejected the defendants’ argument “that Congress’s codification of a discovery rule in section 2255(b) displaces any common law discovery principles.”  The Ninth Circuit reasoned that Mr. Elden was not arguing that he had belatedly discovered injuries arising from the initial violations of section 2255, but rather, “that he discovered new injuries caused by the defendants’ actions within the limitations period.”  The Ninth Circuit concluded that because the district court had erroneously determined that the statute of limitations barred Mr. Elden’s claim, it had erred. Thus, the Ninth Circuit reversed the district court’s dismissal and remanded the case back to the district court. Mr. Elden will now have an opportunity to litigate whether the Nevermind album cover is in fact child pornography and whether he is entitled to at least some amount of damages as a result for distribution of the album after 2011.

The Elden case is a good reminder for potential plaintiffs to consider whether the “republication” of offending material can give rise to a new claim within the applicable statute of limitations. This approach can be useful in pursuing claims of copyright infringement, where the initial infringement may have occurred years earlier but there may be acts of recent republication that could give rice to new claims for infringement.