The Briefing by Weintraub Tobin

Legal experts Scott Hervey and Jessica Marlow discuss the risks in influencer marketing deals, emphasizing the importance of understanding legal regulations. They cover topics like IP infringement, music copyright concerns, and promoter liability lawsuits. The podcast sheds light on the civil and SEC liabilities for undisclosed promotions, including celebrity involvement in cryptocurrencies.

In this episode of The Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss a defamation dispute between Rachel Williams – a victim of con artist Anna Sorokin – and Netflix, over her portrayal in the docudrama “Inventing Anna.” Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: Netflix finds itself mired in yet another defamation and false light lawsuit, this one brought on by its portrayal of Rachel Williams, the Vanity Fair photo editor who’s friendship with Anna Delvey –  who passed herself off as German heiress Anna Sorokin.  Williams’ complaint raises some interesting questions about the portrayal of Williams in the program.  We are going to discuss this lawsuit on the next installment of the Briefing by the IP Law Blog Scott: Rachel Williiams does not come across well in the Netlix program, Inventing Anna.  Rather, she comes across as a privileged, freeloader, who sponges off of Sorokin and then abandons Sorkin when Sorkin’s real situation comes to life. So, let’s talk about what Williams will have to establish in order to move her claim forward. Josh:  Williams. brings claims for   defamation and false light.  For her defamation claim Williams will have to establish: that the statements were defamatory; that the statements were published to third parties; that the statements were false; and that it was reasonably understood by the third parties that the statements were of and about herf.  Since Williams is a public figure – she published a story in Vanity Fair and a book about her experiences with Sorkin – she must also prove by “clear and convincing evidence” the statement was made with “actual malice” meaning that the defendant knew the statement was false, or had serious doubts about the truth of the statement. In most states, libel is defined similarly. Scott: A false light claim is a type of invasion of privacy, based on publicity that places a person in the public eye in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the aggrieved person would be placed.  A false light claim is equivalent to a libel claim, and its requirements are the same as a libel claim, including proof of malice. So, in order for Williams to prevail on both her false light and defamation claims, she would have to demonstrate that her portrayal in Inventing Anna was (1) assertions of fact, (2) actually false or create a false impression about her, (3) are highly offensive to a reasonable person or defamatory, and (4) made with actual malice. Josh:  Actual malice would be established by showing that Netflix deliberately portrayed Williams in the hope of insinuating a defamatory import to the viewer, or that Williams knew or acted in reckless disregard as to whether her portrayal would be interpreted by the average viewer as a defamatory statement of fact. Scott: So, let’s take a look at the various portrays of Williams she claims to be actionable.  Williams notes a scene in episode 2 where Sorokin’s friend Neff Davis states or implies that Williams used to be Sorokin’s best friend, but Williams dropped her as a friend because she was jailed and could not pay for Williams’ social life and clothes.  Williams claims that these scenes are false.   Williams was friends with Sorokin because she liked her, not because Sorokin would pick up the tab, and she did not drop Sorokin as a friend because Sorokin was no longer able to pay for her social life and clothes, but rather because she discovered that Sorokin had made the fraudulent statements and promises which induced her to incur significant liabilities, and that Sorkn was a liar and a con artist.  That Sorokin never bought clothes, shoes, earrings, or a bag as gifts for Williams, who never wore Sorokin’s clothing or accessories and never told Neff that Sorokin had bought her clothes.  Williams claims that the statements are defamatory because Williams is falsely portrayed as a disloyal and opportunistic friend, a sponger, and a freeloader. Josh: There are other scenes referenced by Williams which portray Williams as a freeloader or a false friend.  For example, a scene in episode 5 where Williams is portrayed in attempting to convince Sorkin to pay for an expensive hairstyle for Williams and a scene in episode 6 where Williams is portrayed trying to get Sorkin to pay for a more expensive hotel room in Moracco.  Williams claims. Williams claims that this scene is false and never happened.  Williams never tried to get Sorokin to pay for an expensive hair stylist for her, and Sorokin never paid for her hair.  Also, Sorokin made the arrangements with the Hotel herself, and Williams did not make any suggestions to her about the accommodation there.  Williams also takes offense to her being portrayed in the program as not paying for any dinner, drinks or spa outings with Sorkin.  Williams claims that this wrongfully portrays her as a freeloader.  IN the complaint Williams claims that she regularly paid her way. Scott:  In the complaint Williams also takes issue with a scene in episode 6where Williams is portrayed as abandoning Sorkin in Morocco.  After the scenes depicting the problems with the credit cards at the Hotel and the private museum tour, Williams tells Anna who is alone in her room, drinking heavily and depressed, that she is leaving.  Sorokin begs her not to leave her, but Williams leaves anyway.  According to the complaint, Williams had a pre-existing business meeting in France and Williams had told Sorkin prior to the pair leaving for Morocco, that she (Williams) would be leaving on a certain date and that Williams left Morocco Sorkin was not sad or depressed.  Williams alleges that The statements in these scenes are defamatory because Williams is falsely portrayed as a fair weather friend who abandoned Sorokin when she was alone, depressed and in trouble in Morocco, and needed help and support. These are negative personal traits or attitudes that Williams does not hold. Josh: Another set of interesting allegations has to do the programs treatment of the charges from Williams and Sorokin’s Morocco trip on Williams’ company credit card.  The program portrays Williams as not being entirely upfront with her employer, Vanity Fair, about the charges.  In fact in the program there is an exchange between Williams and one of her supervisors where Williams is portrayed feigning knowledge of the outstanding charges; essentially Williams is portrayed as lying to her employer.  Williams states that this is a false statement and/or attribution in that she never lied to her employer about this charge, but rather, she voluntarily told her employer that a large personal charge had been placed on her Business Amex and that she accepted responsibility for it. Scott:  Before the court even gets to the question of whether Williams’ portrayal is defamatory, the court would first have to determine whether her portrayal was substantially true. If the court determines that a statement is substantially true, that’s the end of the defamation and false light claim.  Its only after the court determines that the statement or portrayal is not substantially true that the court will consider whether the statements or portrayals are statements of fact or the dramatized opinion of the producer. Josh: In deciding whether a statement is substantially true, courts typically compare the language or portrayal with the actual truth to determine whether the truth would have a different effect on the mind of the average reader/ viewer.  Taking the allegations in the complaint as true – that Williams did not say or act in the way she is portrayed in the series, I think the court would not find the various complained of portrayals as being substantially true, Scott: I agree Josh.  Williams’ portrayal in the series was was commented on by a few media outlets.  In an article entitled “Inventing Anna has a brutal vendetta against Rachel Williams – is Netflix bitter she sold her story to HBO?”, the Independent wrote, “Inventing Anna really, really wants us to hate Rachel Williams… Williams features as a character in Inventing Anna, a show which seems hellbent on making her out to be the worst person in the world…The New York Post wrote “Shonda’s most insane move, however, is treating poor Vanity Fair photo editor Rachel Williams like she’s the Wicked Witch of the West. The complaint also alleges that, as a result of Netflix’s portrayal, Williams was subjected to substantial online abuse, negative in-person interactions and negative characterizations in podcasts.  The complaint includes a representative sample but notes that Williams has received thousands of similar abusive messages.  The allegation is that if Williams was not falsely portrayed in this manner, she would not have been subject to this negative treatment by the public. Josh: If a statement/portrayal is not truthful, then the next question would be whether an average, reasonable viewer, watching the scenes in their original context, would conclude that they are statements of fact and not the dramatized opinion of the producer.  The 9th Cir believes that viewers of this type of programming know that they are “more fiction than fact.” however New York does not go this far.  In Fairstein v. Netflix, the United States District Court for the Southern District of New York declined to conclude that viewers of When They See Us would assume the program is “more fiction than fact” but rather that the dialogue in the dramatization “is not a verbatim recounting of the real-life participants and is intended to capture the essence of their words and deeds.” Scott:  According to the Fairstein court, the key to determining the difference between non-actionable statements of opinion and actionable statements of facts (or an opinion that implies that it is based upon facts which justify the opinion) is the implication that the statement is based on undisclosed facts known to the defendants.  So, is. Williams’ portrayal the unactionable, dramatized opinion of the producers, or is her portrayal based on, or does it appear to the average, reasonable viewer to be based on undisclosed facts known to the producers? Josh: The producers include a very conspicuous disclaimer at the beginning of every episode.  The disclaimer generally states “This story is completely true, except for all the parts that are total bullshit or totally made up.” Usually disclaimers give the producer some room to claim that a work or parts of a work are dramatized opinions.  However, as the United States District Court for the Central District of California pointed out in Gaprindashvili (Ga prin dash vill) v. Netflix (the Queens Gambit defamation suit), the presence of a disclaimer is a “factor in the analysis, albeit not a dispositive one.” Scott: That’s right Josh, in that case the court found that Gaprindashvili ((Ga prin dash vill) had plead sufficient facts to support her defamation claim and the court reminded Netflix that works of fiction are not immune from defamation suits if they disparage real people. Josh: The distinction between fact and opinion is an issue of law for the courts, and the determination will be based on the court’s assessment of how the statement would be understood by the average person exposed to the statement in its full context.  I  think it’s possible that the court will find that as to some of the depictions, especially the scenes in which Williams is portrayed as a less than truthful and forthcoming employee of Vanity Faire, the average viewer would not have a reason to conclude that such actions reflect a dramatized opinion of the filmmakers and such viewer could fairly conclude that the depiction was based on undisclosed facts known to the defendants. Scott: Let’s look at the remaining elements as I think they somewhat run together – actually false or create a false impression about her, (3) are highly offensive to a reasonable person or defamatory, and (4) made with actual malice.  I think the media stories on the negative depiction of Williams and the evidence of the hatred being aimed at her online establish that a false impression was made and that this false impression was highly offensive to a reasonable person.  As for actual malice, Williams would have to show that Netflix deliberately portrayed Williams in the hope of insinuating a defamatory import to the viewer, or that Williams knew or acted in reckless disregard as to whether her portrayal would be interpreted by the average viewer as a defamatory statement of fact. Josh: The Complaint has a separate section devoted entirely to establishing actual malice.  According to the complaint, the production had hired a researcher whos job it was to investigate the Sorokin story and provide the research to the writers.  . Shonda Rhimes, the executive producer and creator of the Series, explained in an interview, “We were telling a story that was based on fact, so needed a document to build an extensive timeline of events, to dig into little things that we weren’t even sure were going to matter. For this particular show, having someone who has read every transcript of the trial, who was paying close attention to every detail in Anna’s life, was really, really important, because we wanted to know what we were thinking. We wanted to know what we were making up; we didn’t want to be making things up just for the sake of it.” She added, “we wanted to intentionally be fictionalizing moments versus just accidentally be fictionalizing them.” Scott: The complaint also points to the fact that the New York post article upon which the series is based does not contain any negative portrayal of Williams.  Also, the fat that Williams had published the Vanity Fair article and book, My Friend Anna.  Also, it appears that Williams’ attorney sent Netflix two letters during the shows production expressing concern that Williams would be portrayed falsely- Based on the complaint it seems that Netflix was likely on notice. Netflix doesn’t shy away from a lawsuit and if what they have done in previous indicators I expect Netflix will hit back hard, arguing that the portrayals are substantially true…to the extent they are not the producer’s dramatized opinion.  We will have to see where this case goes

Discover how truth became the ultimate defense in the legal battle between Cynthia Love and Kanye West. Unpack the court's ruling on displaying historical footage as defamation. Hear Scott and Eric discuss the case and ruling on 'The Briefing'.

Can AI inventions be patented? Scott Hervey and Eric Caligiuri explore recent USPTO guidance on patenting AI-assisted inventions in this installment of “The Briefing” by Weintraub Tobin.   Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: Can AI inventions be patented? Can inventors use AI assistance in the creation of an invention, and can that invention be patented? On February 12, 2024, the United States Patent and Trademark Office issued guidance on the patentability of inventions developed with the assistance of artificial intelligence. I’m Scott Hervey from Weintraub Tobin, and I am joined today by Weintraub lawyer and frequent guest to the briefing, Eric Caligiuri, to discuss this new development in patent prosecution on this episode of “The Briefing.” Eric, welcome back to “The Briefing.” Eric: Good to be here, Scott. Scott: So, Eric, the USPTO recently issued a guidance statement that addressed the listing of non-humans on patent applications. Now, this seems to stem from the various patent applications filed by Stefan Thaler or Thaler, which lists his AI tool device for the autonomous bootstrapping of unified sciences, or DABUS, as the inventor. The USPTO denied these applications, and this denial was upheld by the Federal Circuit. Eric: Right, Scott, in the guidance, the USPTO explained that AI systems and other non-natural persons cannot be listed as inventors on patent applications or patents. The USPTO reasoned that the US Supreme Court has indicated that the meaning of invention in the patent act refers to the inventor’s conception. Similarly, the Federal Circuit has made clear that conception is the touchstone of inventorship. Conception is often referred to as a mental act or the mental part of the invention. Specifically, it is the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention as it is hereafter to be applied in practice. Because conception is an act performed in the mind, it has to date been understood as only performed by natural persons. Scott: Eric, there has been some question about the patentability of inventions created using AI tools. The USPTO issued guidance on this issue as well. Eric: That’s right. The USPTO explained that while AI-assisted inventions are not categorically unpatentable, the inventorship analysis should focus on human contributions, as patents function to incentivize and reward human ingenuity. Thus, patent protection may be sought for inventions created through the use of AI tools under specific circumstances. Scott: So the USPTO made it clear that inventions created through the use of AI tools are not per se unpatentable. Eric: That’s correct. The USPTO said that there are no specific sections of the patent act that support a position that inventions that are created by natural persons using specific tools, including AI systems, result in improper inventorship or otherwise unpatentable. The statutes only require the naming of natural persons who invented or discovered the claimed invention. Irrespective of the contributions provided by an AI system or other advanced technology system. Scott: So, Eric, what are the circumstances under which a creator or inventor using an AI tool can claim ownership of the invention? Eric: In the context of AI-assisted inventions, natural persons who create an invention using an AI system or any other advanced system must still contribute significantly to the invention. There is no requirement for a named inventor to contribute to every claim in an application or patent. A contribution to a single claim is sufficient. However, each claim must have been invented by at least one named inventor. In other words, a natural person must have significantly contributed to each claim in a patent or patent application. In the event of a single person using an AI system to create an invention, that single person must make a significant contribution to every claim in the patent or patent application. Inventorship is improper if any patent or patent application that includes a claim in which at least one natural person did not significantly contribute to the claimed invention, even if the application or patent includes other claims invented by at least one natural person. Scott: In determining whether a person significantly contributes to an invention created using AI tools, the USPTO will look to the same test it uses to determine inventorship in claimed joint inventions, right? Eric: Correct. The USPTO looks at the Pannu factors. Each inventor must contribute in some significant manner to the conception or reduction to practice of the invention, make a contribution to the claimed invention that is not insignificant in quality when that contribution is measured against the dimension of the full invention, and do more than merely explain in the real inventor’s well-known concepts and or the current state of the art. Scott: So, Eric, what can applicants expect when filing an application for an invention created using AI tools? Eric: When applying the Pannu factors to determine whether natural persons significantly contributed to an AI-assisted invention? This determination is made on a claim by claim or a case by case basis, and each instance turns on its own facts. While the USPTO generally presumes those inventors named on the application data sheet are the actual inventor or joint inventors of the application, patent examiners will carefully evaluate the facts from the file record or other extrinsic evidence when making determinations on inventorship. When the facts or evidence indicates that the named inventor or joint inventors did not contribute significantly to the claimed invention, the civic claim and possibly the entire application may be rejected. Scott: No inventor wants to go through the time and expense of filing a patent application only to have it rejected. We know that an inventor must significantly contribute to the creation of the invention, and such contribution must meet the Pannu factors. What else can the inventor consider? Eric: Agreed. The USPT of them provided the following non-exhaustive list of principles that can help determine whether an AI assisted invention is patentable. First, merely recognizing a problem or having a general goal or research plan to pursue does not rise to the level of conception. A natural person who only presents a problem to an AI system may not be a proper inventor or joint inventor of an invention identified from the output of the AI system. However, a significant contribution can be shown by the way the person constructs the prompt and view of a specific problem to elicit a particular solution from the AI system. Scott: Now, reducing an invention to practice alone is not a significant contribution that rises to the level of inventorship. Eric: That’s right. A natural person who merely recognizes and appreciates the output of an AI system as an invention, particularly when the properties and utility of the output are apparent to those of ordinary skill in the art, is not necessarily an inventor. However, a person who takes the output of an AI system and makes a significant contribution to the output to create an invention may be a proper inventor. Alternatively, in certain situations, a person who conducts a successful experiment using the AI system’s output could demonstrate that the person provided significant contribution to the invention, even if that person is unable to establish conception until the invention has been reduced to practice. Scott: A natural person who develops an essential building block from which the claimed invention is derived may be considered to have provided a significant contribution to the conception of the claimed invention, even though the person was not present for or a participant in each activity that led to the conception of the claimed invention. Eric: Correct. In some situations, the natural person who designs, builds, or trains an AI system in view of a specific problem to elicit a particular solution could be an inventor, where the designing, building, or training of the AI system is a significant contribution to the invention created by the AI system. Scott: Maintaining intellectual domination over an AI system does not, on its own, make a person an inventor of any inventions created through the use of the AI system. Right? Eric: Exactly! A person simply owning or overseeing an AI system that is used in the creation of an invention without providing a significant contribution to the conception of the invention does not make that person an inventor. The USPTO reminded applicants that they still have a duty to disclose, and in applications for AI-assisted inventions, this information could include evidence that demonstrates a named inventor did not significantly contribute to the invention because the person’s reported contribution was made by the AI system. Scott: Thanks, Eric, that was quite fascinating. Actually, I’m quite fascinated by the USPTO; having said that, a significant contribution could be shown by the way a person constructs the prompts in view of a specific problem to elicit a particular solution from the AI system. I think that’s, that’s pretty groundbreaking, right? I mean, that’s basically saying that an inventor could be considered to have significantly contributed to an invention that is created due to the output of a generative AI system based solely on the structure and construction of the prompts that they feed into the system. I think that’s pretty groundbreaking. Would you agree? Eric: No, I totally agree with that. I mean, essentially, what you’re saying is, based solely on the inputs into the AI system, they could potentially be considered an inventor, assuming that those inputs significantly contributed, I guess, to the output, which would be the conception of the invention. Scott: Yeah, I guess it has to do with the, it seemed from at least that statement that it seemed to be the work that goes into structuring the input, creating and structuring the input. Fascinating. I think we’ll definitely have to keep our eye on future patent applications that are filed based on the use of AI tools and see how this all shakes out. Thanks again, Eric, for bringing this to our attention. Eric: Thank you for listening to this episode of “The Briefing.” We hope you enjoyed the episode. If you did, please remember to subscribe, leave us a review and share this episode with your friends and colleagues, and if you have any questions about the topics we covered today, please leave a comment.

Discover the Supreme Court case on copyright damages recovery time frame. Learn about the circuit split, the Nealy vs. Warner Chappell Music lawsuit, and the impact on high-profile cases like Flo Rida's song. Dive into the legal dispute over discovery rules and speculate on the Supreme Court ruling. Explore the need for intervention in copyright dispute resolution for fair legal processes.

Dive into the new WGA and SAG contract provisions relating to AI with Scott Hervey and Jamie Lincenberg. They explore the definition of generative artificial intelligence (GAI) and its impact on writer credit and compensation. The podcast also discusses the challenges of protecting literary material created by GAI and the evolving rights of performers in digital replicas under the 2023 agreements.

Graffiti artists sue Guess and Macy's for using their tags in clothing, claiming it as their identifying artwork. Legal analysis on false endorsement, right of publicity, and copyright implications of graffiti tags. Speculation on lawsuit outcome and possible settlement

As James Kachmar previously wrote on the IP Law Blog, the man who was photographed as a naked baby in 1991 for Nirvana’s iconic “Nevermind” album cover is now suing the band for distributing child pornography. Scott Hervey and James discuss the Ninth Circuit’s opinion on the case in this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here. Show Notes: James: In 1991, the grunge band Nirvana was one of the most popular musical acts in the United States with its anthem “Smells like Teen Spirit”, which was featured on its album Nevermind. Many will remember the cover of that album, which featured a naked baby swimming underwater and reaching for a dollar bill on a fishing hook. Three months after its release, Nevermind rose to the top of the Billboard 200 rankings and since then has sold over 30 million copies. The picture on the album was licensed for use on other merchandise, such as t-shirts, and was also the subject of various parodies. Now, 30 years later, Nirvana, its surviving members, and its record companies face a civil lawsuit for allegedly distributing child pornography by the now-grown man who was depicted on the album cover as a baby. I am James Kachmar from Weintraub Tobin, and I am joining Scott Hervey from Weintraub Tobin to talk about this case on the next installment of “The Briefing.” Scott: James, welcome back to The Briefing. This case, the case of Elden versus Nirvana, has been on my mind since I read your excellent article on the case. Can you give us some background? James: Sure. Scott, the baby in that photo, is now a gentleman. His name is Spencer Elden, and he was four months old at the time the photograph was taken. He turned 18 in 2009 12 years later in 2021, at the age of 30, he filed a lawsuit, and after two rounds of amended complaints, filed a second amended complaint in January 2022. Mr. Elden asserts a single claim against the defendants for a violation of 18 USC section 22 55, which allows victims of child pornography to bring a civil cause of action for their injuries. Scott: And, James, what is the nature of Mr. Elden’s complaint? What’s it based on? What is it based on? James: Mr. Elden’s complaint alleges that the cover of Nevermind depicting him in the nude constitutes child pornography and that the defendants, quote, knowingly possessed, transported, reproduced, advertised, promoted, presented, distributed, provided, and obtained, end quote, this alleged child pornography depicting him. He further alleges that the image has been reproduced and redistributed during the ten years preceding his lawsuit, and since then, pointing out that Nevermind had been rereleased in September 2021, claimed that he had suffered personal injury as a result of the ongoing violations of section 22 55. Scott: So initially, the defendants moved to dismiss Mr. Elden’s complaint, arguing that it was barred by the applicable tenure statute of limitations for such claims. The district court agreed with the defendants and dismissed the complaint with prejudice. Mr. Elden appealed that dismissal to the 9th Circuit. And what happened on appeal, James? James: Well, Scott, just days before Christmas last year, the 9th Circuit issued its opinion in Elden versus Nirvana, LLC, and reversed the dismissal of his claims. Importantly, the 9th Circuit, in its decision, did not decide whether the album cover, in fact, constituted child pornography. Rather, it only decided whether his claims were timely. The issue of whether the album cover constitutes child pornography will be decided on remand by the lower court. Scott: So, what was the basis for the 9th Circuit’s reversal of the district court’s dismissal? James: Well, the 9th Circuit began by examining the text of the statute of limitation provisions in section 22 55, which set forth two pertinent time frames. First, the plaintiff must have been a minor when victimized by the violation, such as the distribution of child pornography. And two, the plaintiff must have suffered personal injury as a result of the violation, regardless of whether the injury occurred when the plaintiff was a minor or as an adult. The 9th Circuit made clear that while the violation of the criminal law must have initially occurred while the plaintiff was a minor, the plaintiff could pursue a claim for personal injury that did not occur until after he or she became an adult. Scott: Okay, and how does the tenure statute of limitations apply to the violation? Then when can the plaintiff bring a claim either? Well, the plaintiff can bring a claim that was based on an injury that occurred either before or after the plaintiff was an adult. James: Well, Scott, a plaintiff can bring a claim within ten years after the date of which the plaintiff reasonably discovers the violation that forms the basis of the claim. Scott: Okay, but this album was released in the early nineties, and that’s well over 30 years ago. So how is it that the 9th Circuit found the statute of limitations, a ten-year statute of limitations, had not yet run? James: Well, the 9th Circuit examined various types of personal injury the victim of child pornography may sustain, such as injury to the child’s reputation and other injuries, such as emotional wellbeing or emotional distress. The 9th Circuit continued by drawing an analogy to reputational harm that a plaintiff who is the victim of a defamatory statement may suffer. In using this analogy, the 9th Circuit pointed out that victims of child pornography, like someone who has been defamed, may suffer a new injury. Upon the republication of the offensive material, the 9th Circuit concluded that with regard to Mr. Elden’s claims, quote, we hold that if a predicate criminal offense occurred when the plaintiff was a minor, the statute of limitations does not run until ten years after the victim reasonably discovers a personal injury resulting from the offense, which may include republication of the child pornography. That was the basis of the predicate criminal offense, end quote. Scott: So, the first prong of the statute would require Mr. Elden to bring his claim within ten years after the date on which he discovered the use of the photos. There was no dispute that Mr. Elden was aware of the distribution of the Nevermind cover at a very young age, and thus, he could reasonably discover any additional violations of the statute as they occurred. So, to the extent a violation occurred in 2009 when Mr. Elden turned 18, he would have to bring his actions by 2019 to avoid the ten-year bar under the first prong of the statute of limitations. Had the statute only contained that type of statute of limitations, Mr. Elden’s claim would have likely been barred, right? James: That’s correct, Scott. However, the second prong of the statute of limitations provision allows a complaint to be brought within ten years from the date on which the plaintiff reasonably discovers the personal injury that forms the basis for his or her claim. Under this prong, the 9th Circuit concluded that Mr. Elden had timely alleged a claim for violation of section 22 55. While he alleged that the violations began in 1991 when the photograph was taken, and he was still a minor, it wasn’t until the rerelease of Nevermind in 2021 that he had sustained additional personal injuries that formed the basis of his claim. The 9th Circuit concluded that because of that rerelease and other republications after 2011, which could give rise to personal injuries under the second prong, Mr. Elden had ten years from those dates to file his complaint. And under this approach, the 9th Circuit concluded that his complaint had been timely. Scott: The 9th Circuit was very clear in its rejection of the defendant’s claim that the statute of limitations for violations of section 22 55 should run against a particular offender when a plaintiff, quote, knows that a particular offender is responsible for the predicate offense and subsequent injuries. The 9th Circuit said that this was not supported by the statute’s text, and logically, the child pornography victim suffers the same injury when a new individual or the original creator redistributes the image. James: Right, and the 9th Circuit also rejected the defendant’s argument that the plaintiff’s claim should be treated like those other cases in which a plaintiff may not have discovered all of the latent or the full extent of his or her injuries from the initial violation, which would not normally amount to a new injury. Rather, the 9th Circuit found that Mr. Elden was alleging new injuries that stemmed from each redistribution or republication of the album covered during the ten years prior to his filing of the lawsuit, and the court concluded those would be within the statute of limitations. Scott: Additionally, it’s important to point out the 9th Circuit rejected the defendant’s argument that Congress’s codification of a discovery rule in this specific statute displaces any common law discovery principles. The 9th Circuit reason that Mr. Elden was not arguing that he had belatedly discovered injuries arising from the initial violations of section 22 55, but rather he discovered new injuries caused by the defendant’s new actions, the 2021 rerelease of Nevermind within the limitations period. The 9th Circuit concluded that because the district court had erroneously determined that the statute of limitations barred Mr. Elden’s claim, the district court had erred. Thus, the 9th Circuit reversed the district court’s dismissal and remanded the case back to the district court. So, James, it seems that Mr. Elden will now have an opportunity to finally litigate whether the Nevermind album cover is child pornography and whether he is entitled to at least some amount of damages resulting from the redistribution of the album in 2021. James: That’s correct, Scott. Scott: And so, James, what’s the lesson? There’s got to be a lesson from this case. What’s the lesson here? James: I think the Elden case is a good reminder for potential plaintiffs to consider whether the republication of offending material can give rise to a new claim within the applicable statute of limitations. This approach may be useful in pursuing claims for copyright infringement where the initial infringement may have occurred years ago, but there may be acts of recent republication that could give rise to new causes of action for infringement. Scott: That’s true, James, and a very good point raised. James, thanks for joining us today to discuss this case. James: Thank you for listening to this episode of “The Briefing”. We hope you enjoyed the episode. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. And if you have any questions about the topics we covered today, please feel free to leave us a comment.

Brandy Melville is asking the Supreme Court to review the 9th Circuit's decision in its dispute with Redbubble, causing a circuit split. They discuss the history of the case, the legal standard for contributory liability, and the need for the Supreme Court to revisit the standard for contributory trademark infringement. They also analyze the requirement of knowledge for willful blindness and the possibility of forum shopping if the Supreme Court does not take up the case.

The podcast discusses the limitations of the Rogers test due to the Jack Daniels case. It also explores the Ninth Circuit's withdrawal of the test and the impact of a recent case on its application in determining trademark use.