Court Revives Lawsuit Over Nirvana's Nevermind Cover

Man featured, as a naked baby, on the cover says it was sexual exploitation
By Newser Editors and Wire Services
Posted Dec 22, 2023 2:00 AM CST
'Nirvana Baby' Has His Lawsuit Over Nevermind Cover Revived
Nirvana band members Krist Novoselic, from left, Dave Grohl, and Kurt Cobain pose after receiving the award for best alternative video for "In Bloom" at the 10th annual MTV Video Music Awards on Sept. 2, 1993, in Universal City, Calif.   (AP Photo/Mark J. Terrill, File)

A federal appeals court on Thursday revived a child sexual exploitation lawsuit filed by the man who appeared naked as a 4-month-old on the cover of Nirvana's 1991 album Nevermind, the AP reports. Spencer Elden's lawsuit against the grunge rock group alleges that he has suffered "permanent harm" as the band and others profited from the image of him underwater in a swimming pool, appearing to grab for a dollar bill on a fish hook. The suit says the image violated federal laws on child sexual abuse material, although no criminal charges were ever sought. A federal judge in California threw out the lawsuit last year but allowed Elden to file a revised version, which the judge later dismissed on grounds that it was outside the 10-year statute of limitations of one of the laws used as a cause of action.

Thursday's decision by a three-judge panel of the Ninth US Circuit Court of Appeals in California reversed that ruling and sent the case back to the lower court. The appellate panel found that each republication of an image "may constitute a new personal injury" with a new deadline and cited the image's appearance on a 30th anniversary reissue of Nevermind in 2021. "The question whether the Nevermind album cover meets the definition of child pornography is not at issue in this appeal," the court wrote, according to the New York Times. In an email to the AP, Nirvana attorney Bert Deixler called the ruling a "procedural setback." "We will defend this meritless case with vigor and expect to prevail," he wrote. (Elden's parents reportedly received just $200 for the shot, which Elden later recreated as a teen.)

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