The Briefing by Weintraub Tobin

Get into the holiday spirit with a look at some of the most unique Christmas patents ever filed. From Santa detectors to upside-down Christmas trees, Scott Hervey and Jamie Lincenberg explore festive inventions that add a little extra cheer to the season on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel.

Who really owns your Thanksgiving traditions? In this special holiday edition of The Briefing, Weintraub Tobin partners Scott Hervey and Richard Buckley discuss how intellectual property law intersects with holiday food, recipes, and branding. They explore: Why recipes usually aren’t protected by copyright The surprising trademarks behind holiday favorites like Turducken and Tofurky How brands use trademarks, trade dress, and storytelling to own a piece of the Thanksgiving season The rise of “Friendsgiving” as both a cultural phenomenon and a branding challenge Whether you’re a lawyer, brand owner, or marketing professional, this episode offers valuable insight into how IP shapes the way we celebrate and sell the holidays.

After losing its anti-SLAPP motion, Warner Bros. has appealed in Roadrunner JMTC LLC v. Warner Bros. Television, the lawsuit brought by Michael Crichton’s estate claiming the new series The Pitt is an unauthorized derivative of ER. In this episode of The Briefing, Weintraub Tobin attorneys Scott Hervey and Tara Sattler discuss: The background behind the ER “freeze clause” Warner Bros.’ First Amendment arguments under California’s anti-SLAPP statute The battle over what “derivative work” really means How the trial court handled the Katz declaration The broader implications for creative freedom and legacy IP Watch this episode on YouTube.

A consent agreement can be a powerful tool to overcome a USPTO likelihood-of-confusion refusal—but only if it’s done right. In this episode of The Briefing, Weintraub Tobin attorneys Scott Hervey and Richard Buckley discuss the TTAB’s precedential decision in In re Ye Mystic Krewe of Gasparilla, where the Board rejected a one-page consent agreement as a “naked consent” insufficient to overcome a Section 2(d) refusal. They unpack: The history of the GASPARILLA application Why the TTAB said the agreement didn’t “show the work” How to draft a consent agreement that will actually persuade the USPTO Don’t miss this one—it’s a practical guide for anyone working with trademarks or brand portfolios. Watch this episode on YouTube.

A federal court has granted summary judgment for Nirvana, dismissing Spencer Elden’s claim that the Nevermind album cover — depicting him as a baby — constituted child pornography. In this episode of The Briefing, Scott Hervey and James Kachmar revisit their earlier coverage of the Ninth Circuit’s decision and unpack how the district court’s final ruling turned on artistic intent and context rather than perception. Tune in to learn how the court applied the Dost factors, what this ruling means for artists and rights holders, and how intent shapes the boundary between art and exploitation. Watch this episode on YouTube. Show Notes: Scott: In a previous episode, we covered Elden versus Nirvana, the lawsuit brought by Spencer Elden, the Baby, on the cover of Nirvana’s Never Mind album, who claimed that the image amounted to child pornography. The Ninth Circuit revived Elden’s case in late 2023, holding that his claims were not time barred and sent it back to the District Court to decide the big question, was Nirvana’s album cover child pornography? Now that question has been answered. The District Court has granted summary judgment for Nirvana, holding that the cover is not child pornography as a matter of law. I’m Scott Hervey, and I’m joined today by my partner, James Kachmar. We are going to break down the District Court’s ruling and evidence surrounding the artistic intent behind one of the most iconic album covers of all time on today’s installment of The Briefing. James, welcome back to The Briefing. Good to have you. James: Thanks for having me back, Scott. Scott: So, James, when you and I last talked about this case, the Ninth Circuit had just revived Eldon’s lawsuit. Can you remind the listeners how we got here? James: Sure, Scott. The photograph at the heart of this case is on the cover of Nirvana’s Never album. It’s a naked baby swimming underwater, appears to be reaching for a dollar bill that’s on a fishing hook. That baby, Spencer Eldon, was four months old when that photo was taken in 1991. Thirty years later, in 2021, Eldon sued Nirvana, the surviving band members, and their record labels under a federal law that allows victims of child pornography to bring civil claims. He alleged that the photo was sexually exploitive and that Nirvana had knowingly possessed, reproduced, and distributed what he claimed was child pornography. Scott: And that case was originally dismissed on statute of limitations grounds. James: Exactly, Scott. The District Court initially threw it out saying that Eldon had waited too long to sue. He turned 18 around 2009, but waited another 12 years to file his lawsuit. But in December 2023, the Ninth Circuit reversed, holding that because the album had been rereleased in 2021, Eldon could bring claims based on that recent republication. That sent the case back to the district Court to decide the substance of Alden’s claim, whether or not the image itself met the legal definition of child pornography. Scott: And now, the District Court, having heard arguments on both sides, has granted summary judgment for Nirvana. So Let’s dive into the court’s reasoning. James: Sure. The court held at the Never mind cover simply doesn’t meet the definition of child pornography under federal law. Scott: Right. We don’t normally dive into this on these podcasts, but this is a media case, and it is interesting. I think there’s some other interesting aspects of this case that we’re going to talk about later. Okay, so the court applied the DOS factors. That’s a six-part test used to assess whether an image is sexually suggestive. Those factors look at things like whether the child’s pose is sexually suggestive, whether the photographer intended to elicit a sexual response. Here, the court said, obvious, that the photograph is not sexually suggestive. It depicts a baby swimming underwater with no sexualized focus or context. James: That’s right, Scott. The judge went even further, emphasizing that there was no evidence of sexual intent by anyone involved with the album cover. The judge wrote, The undisputed evidence establishes that the creative team intended the image to convey a critique of capitalism, not to sexualize or exploit the child. Scott: The court recognized that the concept behind the image was artistic, not sexual. The court noted that photographer, Kurt Weddell, testified that the shoot was done in a single session at a local pool, and that there was no direction to the baby, meaning that Eldon wasn’t posed or otherwise manipulated. James: Exactly, Scott. The designer, Robert Fischer, who created the album artwork, testified that the goal was to comment on how people are chasing money from birth. The court cited that testimony and wrote, The image was designed to be a satirical commentary on the pursuit of wealth, the baby reaching for the dollar, not to elicit any sexual thought. The court concluded that the artistic and social commentary intent was clear and undisputed, and that in context, the image was wholly inconsistent with a notion of sexual exploitation. Scott: I want to talk a bit about Eldon’s claims that the continued and widespread use of the album and the album cover caused him emotional harm. My opinion, and this is just my opinion, some of the evidence introduced by Nirvana tends to show that this was really an attempted money grab by Eldon, which I think is so ironic given the artistic intent of the album, the album cover. I want to make it clear, again, this is my personal opinion based on the district court’s factual findings and its analysis of the record. While they did not specifically say that Eldon brought the suit solely for monetary gain. The evidence discussed in the order strongly suggested that the suit was motivated by financial or publicity interest rather than genuine claims of exploitation or injury. James: Yes, Scott. The majority of this evidence is discussed in the context of rejecting Elden’s claim that the widespread use of the cover had caused him emotional distress or how his own conduct undermined his claim. Scott: All right. I mean, the court, in its order, it covered the fact that Elden had repeatedly and publicly celebrated his association with the never mind album cover for years before filing the lawsuit. He recreated the photo for various anniversaries of the album, and sometimes did that for paid photoshoots. Again, I’m going to point out the irony here. He also gave numerous media interviews over the years where he expressed pride in being the Nirvana Baby. Also relevant was the fact that the album had been around for 30 years before Elden began to complain of his emotional injuries. James: Yeah, and the court noted that these voluntary and enthusiastic reenactments undermine any claim of long-term psychological injury or exploitation, and instead showed that Elden benefited from and sought to profit from the notoriety of that album image. Scott: Yeah, the order specifically pointed out that Elden derived publicity and potential financial benefit from his identity as the Never mind Baby. This was completely inconsistent with a genuine victim narrative. In the order, the district Court points out that Elden even tattooed the album’s name across his chest. I mean, come on. James: Yeah. So even giving Elden the benefit of the Ninth Circuit Statute of Limitations Ruling, his case still fails on the merits. The court closed with a clear statement that the album cover is an artistic image globally recognized for its social commentary, not for sexual content. And with that, the court granted summary judgment for Nirvana and dismissed the case in full. Scott: Right. So after all these years, Elden versus Nirvana has come to an end. I mean, at least for now, Elden could appeal, but I don’t know. I think the chips are pretty much stacked against him, given his past conduct. James: Well, for what it’s worth, Scott, Eldon’s attorneys have told Rolling Stone magazine that they would likely appeal the ruling back to the Ninth Circuit. We may have to do another one of these episodes in the future. However, this ruling underscores that context and intent are critical when evaluating allegations of sexual exploitation in visual art. Artistic nudity, even in involving a minor, doesn’t automatically amount to child pornography. The court looked carefully at what the image was meant to express and concluded that it was a critique of commercialism, not a depiction of sexual conduct. Scott: Right. But I’m sure you would agree with me, James, in this. Let’s be clear, I don’t think this was a good idea from the outset. I understand the artistic intent behind the photo, but this isn’t the Italian Renaissance, right? I mean, maybe in the ’90s, it was a bit more relaxed, but there was way too much risk of a legal blowback here. The artistic intent could have just as easily been conveyed if the baby was wearing a diaper. I don’t know. I think a word of caution here to all of our creatives and rock bands looking to find the next version of the Never mind album cover. Let’s avoid naked babies, eh? James: Yeah, I agree, Scott. I’m not sure how that album cover would fly in today’s environment. Scott: Well, James, thanks for joining me today. Always great to have you. And thank you to our listeners for joining us on the briefing. If you found this episode helpful or interesting, please take a moment to subscribe, like, and share it with your network. We’d also love to hear from you. Please leave us a comment or a review and let us know what topics you would like us to cover in future episodes. I’m Scott Herbie. I’ll see you next time on The Briefing.