Child Featured on Album Cover Waited Too Long to Sue Nirvana, Court Says

A federal court in Los Angeles recently dismissed with prejudice a lawsuit filed by Spencer Elden, who was the baby featured in Nirvana’s iconic Nevermind album artwork, accusing the band and others of creating and exploiting child pornography.  Per the judge, Elden’s lawsuit is barred by the statute of limitations.  We discuss the case below.

Factual Background

According to Elden’s complaint, Nirvana wanted album artwork for its forthcoming Nevermind to feature a naked baby underwater with a fishhook as a prop.   Nirvana and their record label hired photographer Kirk Weddle because he specialized in photographing “submerged humans.”  In 1991, Weddle photographed Elden, who was then four-months old, in the pool at the Pasadena Aquatic Center.  (Weddle allegedly had also recruited several other parents who also submerged their babies underwater while Weddle photographed them.)  Elden’s image was ultimately selected, and Nirvana’s art director superimposed images of a dollar bill and a fishhook onto the image.  (According to a declaration signed by the album’s art director, Elden’s image was selected because his arms were outstretched like he was grabbing something, while the other baby images were at a weird angle, with clenched fists, or not completely in the frame.) 

The Nevermind album was released in September 1991.  The album quickly became a platinum record only months after its release.  In 1992, the image was voted “Best Album Cover” by Rolling Stone’s Critics and Readers Poll, and the album artwork was licensed for merchandise including t-shirts and posters.

The Lawsuit

Nearly 30 years after the album’s release, on August 24, 2021, Elden commenced a lawsuit over the album cover.  Elden sued Nirvana LLC, Courtney Love (as executor of the estate of Kurt Cobain), Dave Grohl, Krist Novoselic, Weddle, and various record companies, among others.  By his suit, Elden asserted a claim pursuant to 18 U.S.C. § 2255, a federal law that provides a civil remedy for those who, while a minor, were victims of certain enumerated crimes, including 18 U.S.C. § 2252A, which prohibits activities relating to material that contains child pornography.  Elden alleged that the album cover is commercial child pornography, and that the defendants engaged in multiple ongoing violations of the statute.  Elden sought to recover for injuries sustained during the ten years preceding the filing of the lawsuit, and injuries he claimed to have sustained since that time as a result of the defendants’ alleged ongoing commercial sexual exploitation of him.  Elden sought an injunction prohibiting future sales and marketing of his image, actual damages, or in the alternative, statutory liquidated damages in the amount of $150,000 per defendant, punitive damages, and attorneys’ fees. 

The defendants filed a motion to dismiss the initial complaint, which was granted, with the court granting Elden leave to amend his complaint.   In January 2022, Elden filed his Second Amended Complaint.  The defendants also moved to dismiss that complaint – chiefly on the ground that it was barred by the statute of limitations.

The Decision

On September 2, 2022, Judge Fernando Olguin, U.S. District Judge for the Central District of California, dismissed the Second Amended Complaint as untimely. 

Section 2255(a) provides that “[a]ny person who, while a minor, was a victim of a violation of” certain trafficking, sexual abuse, or child pornography offenses, including Section 2252A, “and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor,” may sue for civil damages.  Section 2255(b) sets forth the statute of limitations period for claims brought pursuant to Section 2255(a):

(b) Statute of limitations.--Any action commenced under this section shall be barred unless the complaint is filed--

(1) not later than 10 years after the date on which the plaintiff reasonably discovers the later of--

(A) the violation that forms the basis for the claim; or

(B) the injury that forms the basis for the claim; or

(2) not later than 10 years after the date on which the victim reaches 18 years of age.

 Elden relied on subparts 1(A) and (B).   The defendants argued that Elden’s claim was untimely under both subparts.

As to subpart 1(A), the defendants argued that any “violation” had to have occurred no later than 2009, when Elden turned 18 and thus was no longer a minor.  Elden, for his part, acknowledged that he knew of the alleged violation committed by the defendants while he was a minor, but argued that the “violation” that triggers the statute of limitations can be any “violation,” regardless of whether the “violation” occurred while he was a minor.   The court agreed with the defendants’ argument and held that “violations” that occurred while the plaintiff was no longer a minor – including those that are allegedly “ongoing” or “continuing” – cannot form the basis of a Section 2255 claim.  Because Elden did not file the lawsuit within ten years after he discovered a purported “violation,” his claim was untimely under Section 2255(b)(1)(A).

The court also found Elden’s claim untimely under Section 2255(b)(1)(B).  Per the court, the statute “distinguishes between a violation, which must occur ‘while a minor,’ and an injury, which may occur while the plaintiff is a minor or an adult.” The defendants contended that Elden knew of the alleged injuries caused by the defendants well beyond the ten-year limitations period.  Elden asserted that each “distinct violation inflict[s] discrete injury which starts the 10-year statute of limitations anew.”  The court noted that Elden’s reading of the statute would mean that the “clock continuously resets each day a ‘violation’ continues after plaintiff’s minority, even if plaintiff has known for decades of the same criminal activities, i.e., injury, caused by the same known persons.”  Since Elden did not dispute that he knew of injuries arising from the defendants’ activities related to their use of his image on the album cover more than ten years before he filed his lawsuit, the court found that his claim was also time barred under Section 2255(b)(1)(B). 

Since Elden had filed three iterations of his complaint, Judge Olguin held that it would be futile to allow him to file a fourth complaint and dismissed the case with prejudice.

The Appeal

On September 5, 2022, Elden filed a notice of appeal of Judge Olguin’s judgment with the Ninth Circuit Court of Appeals.  The Ninth Circuit has set a scheduling order requiring Elden to file his opening brief by November 4, 2022, and the defendants/appellees’ answering brief must be filed by December 5, 2022.  Since Elden appealed, we will have to wait and see what happens in the appellate court.

Amendment of the Statute

On September 16, 2022, President Biden passed into law the “Eliminating Limits to Justice for Child Sex Abuse Victims Act of 2022.” That law amended, with immediate effect, 18 U.S.C. 2255 by striking subsection (b) discussed above, and inserting the following:

“(b) Statute Of Limitations.—There shall be no time limit for the filing of a complaint commencing an action under this section.”.

The Act and the Amendment takes effect on September 16, 2022 and applies prospectively as follows:

SEC. 3. EFFECTIVE DATE; APPLICABILITY.

This Act and the amendments made by this Act shall—

(1) take effect on the date of enactment of this Act; and

(2) apply to—

(A) any claim or action that, as of the date described in paragraph (1), would not have been barred under section 2255(b) of title 18, United States Code, as it read on the day before the date of enactment of this Act; and

(B) any claim or action arising after the date of enactment of this Act.

Thus, the amendment to the law does not impact Elden’s case, and it will not revive claims that were previously barred.