This is The Legal Beat, a weekly newsletter about music law from Billboard Pro, offering you a one-stop cheat sheet of big new cases, important rulings, and all the fun stuff in between.
This week: Nirvana beats a lawsuit that claimed the cover of the album Nevermind was illegal “sexual exploitation,” Dua Lipa strikes back at a copyright lawsuit over “Levitating,” Cardi B’s defamation battle heads to a federal appeals court, and much more.
THE BIG STORY: Nirvana Defeats Nevermind Baby’s Lawsuit
Just over a year after a headline-grabbing lawsuit claimed Nirvana violated child pornography laws with an iconic 1991 album cover, a federal judge has tossed the case out of court. The cover of Nirvana’s Nevermind — a nude infant swimming in a pool chasing after a dollar attached to a fishhook — was long interpreted as an edgy critique of greed and capitalism. But in a lawsuit filed last summer, the now-adult man featured in the image called it “sexual exploitation.” Spencer Elden, now in his 30s, claimed the band had “leveraged the shocking nature of his image to promote themselves and their music at his expense,” causing him to suffer “lifelong damages.” Firing back, Nirvana sharply disputed the notion that the image amounted to a violation of child pornography laws, saying the allegation was “not serious” and would mean that millions of Americans were “guilty of felony possession of child pornography.” But before formally making those arguments, the band said the case should be dismissed for a far simpler reason. Federal child pornography law has a 10-year statute of limitations, which begins running from the point when a victim “reasonably discovers” the problem — meaning either the violation itself or the harm caused by it. For Elden, that would mean he only discovered the Nevermind image in 2011. But that appeared to be contradicted by his repeated public acknowledgments of the image prior to 2011, including his seeming endorsement of it. Nirvana’s lawyers put it bluntly when they said Elden he could not sue the band in 2021 after having “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.’” On Friday, Judge Fernando M. Olguin embraced that argument, ruling that it was “undisputed” that Elden did not file his complaint within ten years of discovering the Nevermind cover. His attorneys argued that each new use of the allegedly illegal image – every time it was sold, streamed, printed, etc – should reset the clock, but the judge rejected that interpretation of the law. Following the decision, Elden’s attorneys vowed to appeal a ruling that they called an “unprecedented interpretation” of federal child pornography law, setting the stage for more litigation before a federal appeals court in the months ahead.
Other top stories this week…
DUA LIPA FIRES BACK AT ‘LEVITATING’ CASE – Attorneys for Dua Lipa lodged their first response to a copyright lawsuit over her smash hit “Levitating,” saying plainly that the pop star “never heard” the songs she allegedly copied. Songwriters L. Russell Brown and Sandy Linzer sued Lipa in March, accusing her of copying their 1979 song “Wiggle and Giggle All Night” and their 1980 song “Don Diablo.” But her lawyers argued in this week’s filing that Lipa and the other creators of the song lacked the kind of “access” to the earlier songs that’s required to prove copyright infringement. The case is one of two lawsuits Lipa is facing over the massive hit, which spent 77 weeks on the Hot 100 and was named the No. 1 Hot 100 song of 2021. ‘PURPLE RAIN’ ENERGY DRINKS? NOPE – Siding with the Prince estate, the federal trademark office issued a ruling refusing to allow the company behind Bang Energy to register “Purple Rain” as a trademark for energy drinks. The agency cited a survey, commissioned by the estate, that showed 63% of respondents associated the name with either Prince or one of his works. “’Purple Rain’ points uniquely and unmistakably to Prince,” the ruling read. This isn’t the last you’ll hear of “Purple Rain” trademarks: the estate is still awaiting a ruling in a very similar case aimed at blocking a “Purple Rain” brand of wine. MORE ALLEGATIONS AGAINST TRILLER – The social media company was hit with yet another lawsuit over claims that it is refusing to pay its bills, this time from a smartphone app consulting firm called Phiture that says it’s owed more than $132,000 in unpaid fees. The lawsuit claimed that Triller employed the company’s services in March 2021, but defaulted on the agreement by September of that year: “Neither the whole or any part of the above sum has been paid although demand therefor has been made.” The case came weeks after Timbaland and Swizz Beatz sued Triller for $28 million, saying they’re still owed from the sale of their popular Verzuz livestream series, and just days after Sony Music accused Triller of failing to pay licensing fees for months. KESHA & DR. LUKE CASE DRAGS ON – With a February trial looking unlikely in Dr. Luke’s years-long defamation case against Kesha, each side is now blaming the other for the delays. After nearly eight years of litigation, the case – over Kesha’s public accusation of rape against the producer – is currently in a holding pattern while awaiting rulings on important issues by New York’s top appeals court. Last week, Kesha told a judge that she wants to “get this ordeal behind her” but that Dr. Luke’s attorneys had “obstructed” the appeals by refusing to agree to expedited proceedings. His lawyers quickly fired back, saying it was Kesha’s attorneys who had halted the case by “endlessly filing meritless appeals.” CARDI B DEFAMATION GOES UP ON APPEAL – A YouTuber named Tasha K asked a federal appeals court to overturn a $4 million verdict issued earlier this year that found she defamed Cardi B by posting videos with salacious claims about drug use, STDs and prostitution. In their opening brief to the appeals court, Tasha’s attorneys argued that the judge overseeing the trial withheld key evidence about the rapper’s “character,” mean the jurors heard a “very lopsided presentation of evidence” and didn’t get to see who Cardi B “truly is as a person.” The superstar’s attorneys will file their own response brief next month. SINGER STRIKES BACK AT EX-WIFE’S LAWYERS – A year after former Nickelodeon star Alexa Nikolas sued ex-husband Michael Milosh over allegations of sexual abuse, the Rhye musician filed his own lawsuit against her attorneys that accused them of so-called malicious prosecution. Nikolas sued last year, claiming the Canadian electronic musician “preyed on the innocence of a minor fan” by grooming her and then abusing her. But earlier this year she dropped the case, and Milosh now says it never should have been filed at all: “In an effort to extort money, garner fame, and drum-up new business, defendants filed a frivolous lawsuit against Mr. Milosh that lacked any legal basis or factual support,” he wrote.
The best of the rest…
–R. Kelly’s trial has seen plenty of unexpected twists, including one government witness who didn’t show up and another who testified that a key videotape appeared to only display sex between consenting adults, not child pornography. But the evidence against Kelly remains overwhelming and the possibility of an outright acquittal is still likely very remote. Jury deliberations are expected to begin this week. (Chicago Tribune) -Apple settled a copyright dispute with the heirs of the songwriters behind “Get Happy,” “Stormy Weather,” “That’s Amore” and other hits from the Tin Pan Alley music era of the early 20th century. (Reuters) -Prince’s personal photographer can’t sue for copyright infringement over a book project on the late music icon, a federal appeals court ruled, saying that there’s “nothing more than speculation and suspicion” to support his claims. (Law360)