Spencer Elden’s child pornography lawsuit against Nirvana and other parties over the use of his image on the iconic Nevermind album cover has been reinstated by the United States Court of Appeals for the Ninth Circuit. The decision comes more than a year after the lawsuit was dismissed by a California district court.
According to an official summary of the new ruling, which was filed on Thursday (December 21st), the appeals court reversed the district court’s decision “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.”
In August 2021, Elden sued Krist Novoselic, Dave Grohl and Courtney Love (representing the estate of Kurt Cobain), as well as Universal Music Group, Geffen Records, photographer Kirk Weddle, and other parties over the use of his image as a naked 4-month-old baby on the Nevermind album cover. He 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].”
Nirvana and the other parties filed a motion to dismiss in December 2021, arguing that the complaint was “not serious” and that Elden “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.’” The suit was dismissed after Elden missed a deadline to respond, but he refiled in January 2022, only to have that lawsuit thrown out in September 2022 by US judge Fernando Olguin, who ruled that the comlaint was filed past the 10-year statute of limitations.
In detailing its decision to overrule the dismissal, the United States Court of Appeals for the Ninth Circuit noted “Elden’s complaint does allege new injuries, stemming from the Defendants’ redistribution of the album cover during the ten years prior to the action,” including the 30th anniversary box set that was released in 2021.
The appeals court concluded, “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.”
In addition to seeking monetary compensation, Elden has requested that the cover artwork be changed for all future re-releases of Nevermind.
The full decision from the United States Court of Appeals for the Ninth Circuit can be read at this location.