A federal appeals court has revived a lawsuit by a man who was photographed swimming naked as an infant for the cover of Nirvana’s 1991 album, “Nevermind”
The US Court of Appeals for the 9th Circuit on Thursday overturned a 2022 ruling that Spencer Elden had not filed his complaint within the 10-year statute of limitations. “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,” the appellate court said in the summary of its order.
What the case is about
The cover of “Nevermind,” on which a four-month-old Elden appeared, swimming underwater, his eyes fixed on a dollar bill, has become one of the most enduring images in rock music.
In his original complaint, filed August 24, 2021, Elden’s attorneys said the image was pornographic and that he has suffered “lifelong damages” as a result of his involvement.
Elden, now in his 30s, listed the surviving band members, the executor of lead singer Kurt Cobain’s estate, and various record labels as defendants.
The lawsuit alleged that Elden was sexualized because the image of the naked baby grabbing at the dollar bill made the baby resemble “a sex worker.”
Elden has recreated the image at times during his adulthood, but he also suggested in interviews that he felt uncomfortable about the album cover’s popularity.
In 2007, he told the UK’s Sunday Times that he found it “kind of creepy that many people have seen me naked … I feel like the world’s biggest porn star.” The following year he told CNN that he was often asked to attend events as the “Nirvana baby.”
The lawsuit alleged Elden “has and will continue to suffer personal injury from the Defendants’ possession, transportation, reproduction, advertisement, promotion, presentation, distribution, providing, and obtaining of child pornography depicting him.”
What’s next
Elden’s lawsuit will now return to a lower court, where he must prove that the image meets the definition of child pornography, which attorneys for Nirvana have disputed and the appellate court stated was not the basis for their ruling on Thursday.
“The question whether the ‘Nevermind’ album cover meets the definition of child pornography is not at issue in this appeal,” the court wrote in a footnote of their opinion.
Bert Deixler, an attorney for Nirvana, called the ruling a “procedural setback” in a statement to Billboard.
“We will defend this meritless case with vigor and expect to prevail,” Deixler said.
CNN has reached out to representatives for Nirvana for comment.
An attorney for Elden said he was “pleased” by the ruling.
“Spencer is very pleased with the decision and looks forward to having his day in court,” Robert Lewis, Elden’s attorney, said in a statement to CNN. “The decision is important for all child pornography victims.”
‘Nevermind’
Originally released in September 1991, “Nevermind” and its lead single “Smells Like Teen Spirit” helped popularize grunge music.
Both its content and artwork were heralded as seminal rock works, but three years after its release, Nirvana’s frontman, Kurt Cobain, died by suicide in Seattle and the remaining members subsequently disbanded.
Elden told CNN in 2008: “Rumor had it that Cobain had the original concept of wanting to show a mother giving birth under water.” Elden added: “But the compromise was to have a baby swimming under water. Or so that’s what I was told.”
“Nevermind” reached No. 1 on the Billboard 200 in January 1992 and spent 554 weeks on the chart. The album has sold more than 30 million copies.