Ninth Circuit says “Nevermind” District Court’s Dismissal of Iconic Swimming Baby’s Child Pornography Suit

Last month, the Ninth Circuit Court of Appeals found that every republication of Nirvana’s breakthrough 1991 album “Nevermind” may constitute a new injury to Plaintiff Spencer Elden, who was featured swimming naked as a four-month-old on the famous album cover. Mr. Elden’s suit was previously dismissed in the Central District of California based on a 10-year statute of limitations. Highlighting the difficulty of succeeding on a statute of limitations defense at the pleading stage, Circuit Judge Sandra S. Ikuta held 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.”

While the ruling does not settle the timeliness issue once-and-for-all, the Ninth Circuit’s opinion firmly supported Mr. Elden’s theory that, even though the photo was initially published over 30 years ago, each republication of Nevermind could give rise to a new cause of action:

If 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.

But even if Mr. Elden overcomes the Defendant’s statute of limitations defense, he will likely face numerous other hurdles as the case progresses, including potential challenges to his Article III standing and the underlying merits of his claim. Ultimately, a factfinder may be forced to determine whether the iconic cover photo is art or obscenity.