Nirvana Sued Over Nevermind Album Cover

[bosk1]

Pure speculation on my part, but here goes:  If this case had somehow survived the pleading stage, then and only then would we be in the discovery stage.  And I'm going to guess that one of the first documents to be produced would be a release. 

[pg1067]

I forgot about this for a while, but guess what...the case is still pending!

On January 27, 2022, the defendants filed a motion to dismiss.  For the non-lawyers here, a motion to dismiss is a non-evidence based motion.  It accepts all of the "well-pleaded" facts in the complaint as true and says that, even though all these facts are true, there no valid legal claim.  A "well-pleaded" fact is one that is not conclusory in nature.  The only "evidence" that the court can consider are things that are well-established matters of public record (e.g., what time the sun rose and set on a particular day or statements made by the plaintiff publicly) (there's a lot more to judicial notice than that.

The motion to dismiss starts with the following statement:  "The Second Amended Complaint is Spencer Elden’s third attempt to contrive a claim for money by pretending that the 30-year old photograph on the cover of Nirvana’s album 'Nevermind'—one of the most famous and widely-possessed photographs in history—is 'child pornography.'  While there is no serious question that the photograph is not 'child pornography,' Elden’s case is long barred by the statute of limitations.  For Elden, this is strike three.  This case must end."

The motion focuses primarily on the statute of limitations argument (in a nutshell, the lawsuit should've been filed before Elden turned 28).  The motion also makes an argument that he hasn't clearly articulated which defendants did what and that, as a result, even if the case survives the SOL issue, some of the defendants should be dismissed.

The plaintiff's opposition essentially argues that he's entitled to damages based on the alleged violations occurring during the 10 years prior to the filing of the complaint.  In other words, the plaintiff argues that there's a "rolling" statute of limitations.  Not surprisingly, the defendants' reply brief, filed on February 10, 2022, argues that the SOL is not of the "rolling" variety.

The motion to dismiss has been under submission for the past nearly four months.  I didn't read the legal argument sections of the motion and don't have any knowledge otherwise about whether the SOL for "child pornography" is a "rolling" SOL.  I guess we'll see, but it wouldn't surprise me if the court denied the motion, thereby forcing the issue.

[Anguyen92]

All right, I think it's safe to say that this case is officially obviously over.

https://www.rollingstone.com/music/music-news/nirvana-wins-nevermind-baby-lawsuit-dismissal-1234586628/

In an eight-page ruling, U.S. District Judge Fernando Olguin wrote that the lawsuit would grant the defendants’ motion for dismissal again on the grounds that Elden waited too long to file the lawsuit, based on a 10-year statute of limitations.

“In short, because it is undisputed that [Elden] did not file his complaint within ten years after he discovered a violation… the court concludes that his claim is untimely,” Olguin wrote.

The judge continued, “Because plaintiff had an opportunity to address the deficiencies in his complaint regarding the statute of limitations, the court is persuaded that it would be futile to afford plaintiff a fourth opportunity to file an amended complaint.”

[TAC]

So basically the judge said...













...nevermind.










Sorry.

[pg1067]

All right, I think it's safe to say that this case is officially obviously over.

https://www.rollingstone.com/music/music-news/nirvana-wins-nevermind-baby-lawsuit-dismissal-1234586628/

In an eight-page ruling, U.S. District Judge Fernando Olguin wrote that the lawsuit would grant the defendants’ motion for dismissal again on the grounds that Elden waited too long to file the lawsuit, based on a 10-year statute of limitations.

“In short, because it is undisputed that [Elden] did not file his complaint within ten years after he discovered a violation… the court concludes that his claim is untimely,” Olguin wrote.

The judge continued, “Because plaintiff had an opportunity to address the deficiencies in his complaint regarding the statute of limitations, the court is persuaded that it would be futile to afford plaintiff a fourth opportunity to file an amended complaint.”

Not so fast.  Two days after your post, Elden appealed the decision to the 9th Circuit.  It'll be a good 18+ months before it's really over.

Billable hours for EVERYONE (at least on the defense side)!

[Setlist Scotty]

https://loudwire.com/nirvana-nevermind-baby-spencer-eldon-lawsuit-revived

The moron is back again. Doesn't this guy ever gonna learn he's not gonna get a red cent?

[pg1067]

https://loudwire.com/nirvana-nevermind-baby-spencer-eldon-lawsuit-revived

The moron is back again. Doesn't this guy ever gonna learn he's not gonna get a red cent?

It's not so much that he's back; rather, the 9th Circuit ruled on the appeal that was filed in September 2022.

In a nutshell, "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. . . ."  I should have seen this coming.  I didn't read the entire opinion, but it's a pretty non-controversial statute of limitations ruling.

Now's when the billable hours will really kick in.

[Anguyen92]

Well, then.  When they get to the 40th anniversary of Nevermind, they probably will have to re-release it with a different album cover to not cause more trouble, legally?