The man who appears as a naked 4-month-old baby swimming toward a dollar bill on the cover of Nirvana’s iconic Nevermind album can proceed with his legal claim against the band following a federal appeals court ruling on Thursday.
Spencer Elden, now in his 30s, filed his appeal after a lower court pulled the plug on his lawsuit last year on the basis that he waited too long to seek personal injury damages for alleged child pornography. In siding with Elden in the new ruling published on the court’s website, the Ninth Circuit found that while the photograph of Elden dates back to 1991 and he purportedly knew about the band’s dissemination of the album cover for more than a decade, he was not necessarily barred by the 10-year statute of limitations.
“Like victims of defamation, victims of child pornography may suffer a new injury upon the republication of the pornographic material,” the court’s decision reads. “Accordingly, we conclude that each republication of child pornography can constitute a new personal injury analogous to injuries caused by defamation and other dignitary torts. This conclusion is consistent with the Supreme Court’s view that ‘every viewing of child pornography is a repetition of the victim’s abuse.’”
In his amended lawsuit filed in January 2022, Elden named Nirvana, the band’s individual members, Universal Music Group, Geffen Records, MCA Records, Courtney Love as the executor of Kurt Cobain’s estate, and others as defendants. He said the defendants “knowingly” continued to reproduce, distribute and promote the album cover with his image in the 10 years leading up to his filing, including through a 30th anniversary reissue of the album in 2021 that “continues to feature a lascivious exhibition of Spencer’s genitals on the cover.”
The new appeals court decision sends the case back to federal court in Los Angeles, where Elden and his lawyers can press ahead toward a trial. Elden’s lead lawyer did not immediately respond to a request for comment sent by email Thursday.
“This procedural setback does not change our view. We will defend this meritless case with vigor and expect to prevail,” defense lawyer Bert H. Deixler, who represents the band and the other defendants, wrote in a statement sent to Rolling Stone. In prior filings, Nirvana’s lawyers argued Elden failed to identify any new victimization that he “reasonably discovered for the first time after August 2011.” They argued that Elden’s willingness to associate himself with the Nevermind cover over the years — such as selling autographed copies of the cover and, at one point, recreating the photograph as an adult for a paying gig — proved he didn’t suffer any damages.