An attorney for Nirvana has since termed the ruling a “procedural setback,” saying that the band plans to defend itself “with vigor.”
A federal appeals court has revived a years-old child exploitation lawsuit filed by Spencer Elden, who at four months old appeared nude on the cover the 1991 Nirvana album “Nevermind.”
As LegalReader.com has reported before, Elden’s lawsuit alleges that he suffered “permanent harm” after Nirvana and its members profited the widely-recognizable image of him underwater in a swimming pool, appearing to swim after a dollar bill on a fish hook.
In his complaint, Elden says that the image violated federal laws on the creation and dissemination of child sexual abuse materials, even though no criminal charges were ever pressed against Nirvana or its shareholders.
Last year, a California-based federal judge dismissed the lawsuit on a technicality, saying that one of the claim’s causes of action had been filed outside a 10-year statute of limitations.
However, on Thursday, a three-judge panel for the 9th Circuit Court of Appeals reversed that decision, saying that “each republication” of an allegedly exploitative image “may constitute a new personal injury” to the victim.
Legal gavel and books; image courtesy ofsucco via Pixabay, www.pixabay.com
In its decision, the panel noted that Elden had, in his 2021 lawsuit, stated that Nirvana has reproduced the album cover within the past 10 years—most recently with its September 2021 re-release of “Nevermind.”
“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.
The case, adds The New York Times, will now be returned to district court.
Bert H. Deixler, an attorney for Nirvana, has since said that the opinion was “a procedural setback.”
“We will defend this meritless case with vigor and expect to prevail,” Deixler told the Times.
In earlier hearings and filings, Nirvana had insisted that Elden had not been abused, had suffered no injuries, and was clearly attempting to turn a profit by extorting a well-known band.
“Elden has spent three decades profiting from his celebrity as the self-anointed “Nirvana Baby,’” the band’s attorneys wrote in a 2022 court filing. “He has re-enacted the photograph in exchange for a fere, many times; he has had the album title Nevermind tattooed across his chest; he has appeared on a talk show wearing a self-parodying, nude-colored onesie; he has autographed copies of the album cover for sale on eBay; and he has used the connection to try to pick up women.”
The band has also challenged assertions that the image of Elden could in way be interpreted as pornographic, given a clear absence of sexual themes and its presence in millions of American homes.
Sources
Federal court revives lawsuit against Nirvana over 1991 ‘Nevermind’ naked baby album cover
Lawsuit Over Naked Baby on Nirvana’s ‘Nevermind’ Is Revived
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