Spencer Elden gets photographed as a four-month old baby as he's swimming naked in a pool. Nirvana uses that photo in its iconic album cover, which depicts the baby -- including its penis -- swimming towards a hundred dollar bill on a fish hook.
Mr. Elden has been trying to cash in on that cover through litigation for years. His present lawsuit says that the cover is child pornography, so he sues under a federal statute. The district court dismisses the lawsuit on statute of limitations grounds, but the Ninth Circuit reverses, and Judge Ikuta seems right when she says that every republication of the cover (some of which occurred within the current ten-year SOL period) creates a new accrual.
So Mr. Elden gets a remand.
Though it seems to me that he's going to lose on the merits, likely on a Rule 12(c) or MSJ (or, perhaps, at trial), because that album cover isn't "child pornography" under the relevant federal statute, which is defined as "the use of a minor engaging in sexually explicit conduct." Since, in my view, a photo of a naked baby swimming in a pool isn't a photo of a minor engaging in sexually explicit conduct.
Particularly in the context of that baby allegedly swimming towards money on a fish hook.
I get that that's the next stage of the litigation, and not at issue in the present appeal.
But it's next.
