When I noted last year that Spencer Elden had appealed the dismissal of this incredibly stupid case, I said I assumed that was because he and his lawyers were “gluttons for punishment.”
I still think that, but the punishment will have to happen in the district court, because the Ninth Circuit has now reversed.
As you may recall, Spencer Elden is the former baby who was and still is shown on the cover of Nirvana’s 1991 Nevermind album. He was four months old at the time, so he didn’t exactly volunteer, but his parents volunteered him and took $200 for the photo shoot. As you surely know—because that image has been published more than 30 million times since 1991—the baby in it isn’t wearing pants. But neither you nor anybody else ever thought that made it “child pornography,” or ever thought someone would argue that it did, until 2021 when Spencer decided to claim he thought so. See “Nevermind Cover Baby Sues Nirvana for Showing Him Naked” (Sept. 2, 2021).
As I argued at some length at the time, this case is stupid. Among other issues with it, Spencer is necessarily accusing his own parents of being child pornographers who pimped him out for $200—although strangely he seems to have forgotten to name them as defendants. The people he did name—the remaining members of Nirvana, record companies, etc.—have a lot more money than his parents do, but that doesn’t make them any more guilty of this.
The district court should have immediately set this complaint on fire and danced around the blaze before blowing the ashes in Spencer’s face. But instead it gave him three chances to amend before finally dismissing the lawsuit. And it did so based only on the applicable statute of limitations, which gives a victim 10 years to sue. That time starts running on the date the plaintiff turns 18, or the date he or she reasonably discovered the violation or injury the claim is based on, whichever is later. Spencer couldn’t dispute that he filed after he turned 28, and didn’t dispute that he had known for many more than 10 years that his baby business appears on millions of album covers. But he argued that he was and is suffering a new “injury” every day the albums are out there, so he has 10 years to sue for each one. This would mean, of course, that the statute of limitations would never expire, which tends to defeat the purpose of having one. This is one reason the district court rejected the argument.
The Ninth Circuit has now disagreed.
Under the statute, a “violation” must have occurred when the plaintiff was a minor. But the statute also lets plaintiffs sue if they suffered “personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor.” (This language was added in 2006 by something called “Masha’s Law,” so this may be another example of the principle that a law named after someone is usually a bad idea.) The statute doesn’t define “personal injury,” and according to the Ninth Circuit that could include “reputational, emotional and privacy injuries.” So if a plaintiff alleges that kind of personal injury from a new publication of the image, they have 10 years to sue for that injury (according to the Ninth Circuit). But of course every plaintiff bringing one of these cases will necessarily allege that kind of “personal injury”—it’s the only kind that could occur 10 years or more after the fact. If that’s what Congress intended, it’s hard to see why it pretended to impose a time limit at all.
But I guess the Ninth Circuit’s decision on this specific limitations issue is not crazy. And again, as the court mentions briefly in a footnote, “[t]he question whether the Nevermind album cover meets the definition of child pornography is not at issue in this appeal” because the district court didn’t address it. I don’t remember off the top of my head whether the defendants argued Elden’s allegations about that question were “implausible,” to use the legal term that applies on a motion to dismiss. They probably did. I certainly would have, and district courts shouldn’t be reluctant to grant motions based on that argument when faced with a complaint like this one. It seems obvious to me, at least, that this case is going to fail sooner or later because of its extreme stupidness (not a legal term, technically). But now at least another year will pass and more money and court time will be wasted before that happens. And readers will be subjected to at least one more post on this goofy case when it does.
I realize Nirvana et al. already have very competent lawyers, but if they need somebody to help make fun of Spencer Elden in the future, I would make myself available. I just wish to make that clear.