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.
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