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It's one of the most famous album covers of all time, and now an appeals court has decided that Spencer Elden, better known as the ‘Nirvana Baby' from Nevermind, can bring on a child pornography lawsuit for the iconic image after all.
The US Court of Appeals for the Ninth Circuit, in a ruling filed on Thursday, said in effect ‘oh well, whatever, nevermind' to a California district court's previous ruling from more than a year ago that the case should be dismissed.
In its actual legal terms, the appeals court reversed the district court's decision, according to an official summary of the new ruling, “because each republication of child pornography may constitute a new personal injury, Elden’s complaint alleging republication of the album cover within the ten years preceding his action was not barred by the statute of limitations.”
Elden has expressed complicated feelings about his appearance as a naked four-month-old baby in the image in the past, at times seeming to support the photo but in recent years expressing his disapproval.
His original lawsuit was brought on in August 2021, when Elden sued all of the band members of Nirvana — Krist Novoselic, Dave Grohl and Courtney Love (representing the estate of Kurt Cobain) — in addition to Universal Music Group, Geffen Records, the photographer Kirk Weddle, and other parties over the use of his nude image as a baby.
Elden alleged that he was “extensively exploited by the Defendants who have knowingly possessed, transported, reproduced, advertised, promoted, presented, distributed, provided, and obtained commercial child pornography depicting [Elden].”
In response to the suit, Nirvana and the other parties involved filed a motion to dismiss in December 2021 on the grounds that the complaint was “not serious” and further that Elden “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.'”
After a missed deadline but then a refiling of the suit, the case was eventually thrown out on a technicality in September 2022 by US judge Fernando Olguin, who ruled that the complaint was filed past the 10-year statute of limitations.
Now the United States Court of Appeals for the Ninth Circuit is overruling that dismissal, noting that “Elden’s complaint does allege new injuries, stemming from the Defendants’ redistribution of the album cover during the ten years prior to the action,” since a 30th anniversary box set of Nevermind was released in 2021.
The appeals court therefore concluded that, “Because Elden’s claim is not barred by the ten-year statute of limitations set forth in § 2255(b)(1)(B), the district 16 ELDEN V. NIRVANA L.L.C. court erred in granting Defendants’ motion to dismiss on statute of limitations grounds.”
Spencer Elden is seeking both monetary compensation and a request that the cover artwork be changed for all future re-releases of Nevermind. Stay tuned for updates, as the fate of the Nirvana Baby is now in the hands of the U.S. Court of Appeals.
