Lawsuit over naked baby on Nirvana’s Nevermind album is revived

A federal appeals court has ruled against grunge rock group Nirvana, reviving a lawsuit about the band’s use of a naked baby on the cover of its 1991 album Nevermind.

A district court judge had previously dismissed a lawsuit by Spencer Elden, who appeared on the album cover as the baby. Elden had argued that he was a victim of child sexual abuse imagery; however the judge ruled that the complaint had not been filed within the 10-year statute of limitations.

Now a three-judge panel on the US Court of Appeals for the 9th Circuit has reversed that decision, finding that “each republication” of an image “may constitute a new personal injury.”

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 in 1993.Credit: AP

The appeals court noted that Elden’s 2021 complaint says Nirvana had reproduced the album cover within the past 10 years, including the band’s September 2021 re-release of Nevermind.

“The question [of] 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 will now return to the district court.

A lawyer for Elden did not immediately respond to a request for comment. Bert Deixler, a lawyer for Nirvana, said in a statement that the opinion was a “procedural setback.”

“We will defend this meritless case with vigor and expect to prevail,” Deixler said.

Elden was four months old when he was photographed in 1991 by a family friend at the Rose Bowl Aquatics Centre in Pasadena, California. His parents were paid $US200 for the picture, which was later altered to show the baby chasing a dollar note, dangling from a fishhook.

In the decades that followed, Elden seemed to celebrate his appearance on the classic album cover, recreating the moment – although not in the nude – for several of the album’s anniversaries.

But in the lawsuit, Elden said he had suffered “permanent harm” because of his association with the album, including emotional distress and a “lifelong loss of income-earning capacity.”

The lawsuit did not detail the losses but said that Nirvana, the producers of the album and others had all profited at Elden’s expense.

Lawyers for Nirvana argued that Elden had benefited financially from the album cover by re-enacting the photograph for a fee and making public appearances parodying the image. They have also denied that the picture in question was an example of child sexual abuse imagery, noting that the photograph is present in the homes of millions of Americans.

This article originally appeared in The New York Times.

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