The Briefing by Weintraub Tobin

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.

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In the case of Martinez v. Zoom Info Technologies, the Ninth Circuit addressed the “Public Interest” exemption to California’s anti-SLAPP law. Scott Hervey and James Kachmar talk about this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: The 9th Circuit was recently asked to address the public interest exemption to California’s anti-SLAPP law in a proposed class-action lawsuit brought by a plaintiff whose photo and personal information were used without her consent to advertise subscriptions to the website Zoom info. The case is Martinez v. Zoom Info Technologies. My colleague James Kachmar recently wrote an article exploring the interesting substantive and procedural issues concerning the interplay between one’s intellectual property rights and California’s anti-SLAPP law that arose in this case. James is joining me today to talk about this case on this installment of The Briefing by Weintraub Tobin. James, welcome back to The Briefing. James: Thanks for having me. Scott. Scott: James, you wrote an extremely insightful article about the holding in Martinez versus Zoom Info Technologies, Inc. Can you give us some background on the case? James: Sure, Scott. Zoom Info is a website. It boasts a database of approximately 125,000,000 business professionals and contains their relevant information. When someone searches for a person or a business person, either through a web search or through Zoom Info’s website, they can view a teaser profile of Zoom Info with some information about that person, such as their photo, maybe some limited business information, but most of the information is redacted. This teaser profile then contains the subscription buttons that invite the viewers to subscribe to Zoom info for a fee to access more information about that person and do other searches. The plaintiff in the case, Kim Martinez, is a political and legislative director of a labor union representing California public sector employees. Zoom Info has a profile dedicated to her that includes information regarding her job title, her employment at the union, contact information, and names of several of her business colleagues. Her teaser profile included options for a viewer to subscribe to Zoom Info, including, apparently, an option for a $10,000 annual subscription. Ms. Martinez alleged she never used Zoom Info and had not consented to the use of her profile by Zoom Info for marketing purposes. In September 2021, Ms. Martinez filed a lawsuit against Zoom Info in federal court on behalf of herself and a proposed class of California citizens whose profiles might have been used without their consent, like hers. She claimed that Zoom info violated California law, particularly the right of privacy statute, by unlawfully profiting from her intellectual property of herself and the class. Members, such as the use of her name, photo and employment information and Zoom. Scott: Info responded to this filing by filing a motion to dismiss under California’s anti-SLAPP laws, correct? James: Yes. It filed two motions, a motion to dismiss saying that the lawsuit had no merit, and a motion to strike under the anti-SLAPP law in California. California’s anti-SLAPP laws, designed to protect against lawsuits brought primarily to suppress free speech and petition rights while encouraging participation in matters of public significance. The district court denied Zoom Info’s motions, including the motion to strike under the anti-SLAPP, which led Zoom Info to file an immediate appeal to the 9th Circuit. Scott: Now, California’s anti-SLAPP law includes several exemptions or exceptions where the anti-SLAPP statute may not apply. These exemptions are designed to ensure that the law is appropriately applied in cases where there are legitimate concerns or disputes that go beyond free speech and public participation. If the alleged conduct falls under one of these exemptions, it may not be protected by the anti-SLAPP statute. For example, one exemption is commercial speech. If the lawsuit is related to advertising, marketing, or other purely commercial activities, the anti-SLAPP protection may not apply. So, the 9th Circuit initially considered whether it even had jurisdiction to review the district court’s denial of Zoom Info’s anti-SLAPP motion to strike. So what happened there? James: This is the interesting procedural issue you mentioned in the introduction. So, under California’s anti-SLAPP law, if a court denies an anti-SLAPP motion on one of the statutory exemptions, such as the public interest exemption or commercial speech exemption, that denial may not be immediately appealed. However, here, the district court denied the motion based on its determination that Zoom Info had failed to establish the elements for anti-SLAPP relief and was not based on any of the exemptions. As such, the 9th Circuit concluded that it had jurisdiction to consider the appeal because the district court hadn’t found any applicable exemptions. Scott: There was a concurring opinion by two justices on that 9th Circuit ruling, right? James? James: Yes, Scott, there were actually two concurring opinions, but for basically the same reason. Both justices agreed with the result of the outcome that the anti-SLAPP had properly been denied. What they questioned was whether it was proper for the appellate court to consider an immediate appeal of the denial of the motion under California law. We discussed that there is, in certain cases, an immediate right to appeal. These justices decided that’s more of a procedural issue, and the federal courts aren’t necessarily bound by California procedural law. Scott: Interesting. But having established jurisdiction, the 9th Circuit then went on to determine whether the district court had appropriately denied Zoom Info’s anti-SLAPP motion to strike. So what happened there? James: So, ironically, the 9th Circuit, to get jurisdiction, found that the district court hadn’t considered an exemption. And what they really focused their opinion on then is determining that an exemption did apply. To find that the trial court had properly denied the anti-SLAPP motion, the 9th Circuit recognized that under California law, before you engage in an analysis of the merits of an anti-SLAPP motion, you should consider whether any of the claims brought by the plaintiff are subject to a statutory exemption, the public interest exemption, or the commercial speech exemption. Essentially, what the 9th Circuit found was that the district court had put the cart before the horse by failing to address the exemptions. In its ruling denying the motion to strike, the 9th Circuit noted that if a complaint satisfies an exemption to the anti-SLAPP law, it cannot be subject to being stricken under that statute, and the. Scott: 9th Circuit looks specifically at the public interest exemption. Correct? James: Right. Under California law, if a lawsuit is not subject to the under California law, a lawsuit is not subject to anti-SLAPP statute if it is brought solely in the public interest or on behalf of the general public. The exemption requires a plaintiff to plead three criteria that the plaintiff’s relief sought should not differ from that which is sought for the general public. The lawsuit should further an important right affecting the public interest, and private enforcement should be necessary and not disproportionately burdensome. Zoom info in arguing that the exemption should not apply focused primarily on the plaintiff’s claim that she was seeking personal relief, I. E. Damages, for herself as part of the lawsuit, they argued this would require an individualized determination and therefore was not in the public’s interest. The 9th Circuit rejected this argument. Citing California cases that allowed individualized relief within class action lawsuits. The 9th Circuit concluded that she was not seeking any relief in addition to what she was also seeking on behalf of the class members, and therefore, the public interest exemption should apply. Scott: The 9th Circuit then examined the other two elements of the public interest exemption. What did the court find for those last two elements? James: Sure. First, it determined that Ms. Martinez’s lawsuit would enforce an important right affecting the public interest, namely the right to control the use of one’s name and likeness and that it would also confer a significant benefit to the general public in doing so. As you know, Scott, under or California has long declared a policy of protecting artists and other individuals’ rights, to control the use of their Persona. Scott: Yeah, California certainly does, as does New York, by the way, and some other states as well. What about the final element of the public interest exemption? James: As to the third element, the 9th Circuit concluded that the public interest exemption should apply because private enforcement is both necessary and disproportionately burdensome. The court reasoned that as a non-celebrity, Miss Martinez may struggle to demonstrate economic value of the use of her name or likeness and may only recover the minimum statutory damages which would not cover the cost of the litigation itself. On the other hand, by allowing the case to proceed as a class action lawsuit, her personal recovery would be dwarfed by the total recovery for the putative class, which she had alleged could number in the millions of potential class members. Thus, the 9th Circuit concluded that the public interest exemption should apply and provided an adequate basis for the trial court’s denial of the anti-SLAPP motion by Zoom Info, even though the trial court had never reached this issue. Scott: Interesting. So to me, when I read this case, there’s a couple of interesting things that came out to me. The first is that the 9th Circuit basically reached the same result as the district court, but the district court went about it in the wrong way. And I guess the 9th Circuit’s opinion is important because it’s important both for district courts and practitioners to first look at the exemptions and make sure that they are either applicable or not applicable before you go on to examining the elements of the SLAPP statute itself, or whether or not the party seeking the motion to strike under the anti-SLAPP laws has satisfied the elements of the anti-SLAPP law. The second thing that stood out to me was we talked a little bit about the commercial speech exemption, which to me seemed to be a layup. But the court’s analysis of the public interest exemption really seems to be like a three-point from the top of the keys. Do you have any understanding as to maybe why the court addressed what to me seemed to be the more analytical and probably maybe more challenging exemption to apply? James: I don’t. Scott, the court notes in its opinion that having decided the public interest exemption applied, it needed to turn to the commercial speech. All I can suggest is possibly the public interest exemption subsection comes right before the commercial speech. So having decided the first subsection, it didn’t need to turn to the second one. Scott: I mean, that’s probably the reason why the court did it that way. So interesting. And maybe it felt that it needed some clarification on what is or is not a public interest exemption and that class-action lawsuits may, in fact, fall under that in the, there’s, there’s a great takeaway from this case. What should businesses take from this? James: Well, I think the Martinez case serves as a cautionary tale for businesses that use individual photos or personal information for marketing purposes, especially without the person’s consent. The case demonstrates both their potential legal exposure if they do so, as well as the likely obstacles they face in trying to take advantage of California’s anti-SLAPP law to seek early dismissal of these types of lawsuits. Scott: Really interesting. James, keep writing those really great articles, and we’ll have you back again. James: Thanks, Scott. Scott: Thank you for listening to this episode of The Briefing. We hope you enjoyed this 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 us a comment.

Country singer Andy Stone is suing Mariah Carey and Sony Music Entertainment for copyright infringement, claiming that Carey's holiday hit 'All I Want for Christmas Is You' infringes his song with the same name. Scott Hervey and Tara Sattler discuss this case, exploring the details of the lawsuit, analyzing claims of copyright infringement in Christmas songs, and discussing the arguments and financial implications in the lawsuit.

Mariah Carey, known as the 'Queen of Christmas', faced pushback when she tried to trademark the title. Scott Hervey and Tara Sattler discuss this trademark dispute and the consequences of Mariah Carey's failure to defend her application.