The courtroom drama surrounding the nude four-month-old baby who appeared on the cover of Nirvana‘s 1991 album Nevermind has taken another surprising turn. Today (Dec. 21), a federal appeals court revived a child pornography lawsuit filed against the band by Spencer Elden, who says his depiction in the photo constituted sexualizing an image of a minor.
Now in his early 30s, Elden previously expressed both approval and dismay about being associated with Nevermind. As recently as 2016, he recreated the pose and album art in a photoshoot. In the lead-up to the album’s 30th anniversary in 1991, he apparently changed his mind and filed suit seeking significant financial damages for “unlawful conduct” which he says has caused him “permanent harm.” The case was dismissed without prejudice on Sept. 2, 2022, but Elden and his attorneys said last December that they’d appeal, arguing that the harm is ongoing.
Now, the U.S. Court of Appeals for the Ninth Circuit has ruled that each new republication of the image in effect resets the previous statute of limitations on Elden’s claim. “Victims of child pornography may suffer a new injury upon the republication of the pornographic material,” Judge Sandra Segal Ikuta wrote for a three-judge panel. “This conclusion is consistent with the Supreme Court’s view that every viewing of child pornography is a repetition of the victim’s abuse.”
The ruling also states, “If a victim learns a defendant has distributed child pornography and does not sue, but then later learns the defendant has done so again many years later, the statute of limitations … does not prevent the plaintiff from bringing a claim based on that new injury.”
The case will now be returned to a lower court, where Elden will have to prove his claim that the image constitutes child pornography. “We will defend this meritless case with vigor and expect to prevail,” Nirvana attorney Bert Deixler said in a statement.
Aside from the late Kurt Cobain and surviving Nirvana members Dave Grohl and Krist Novoselic, the suit also names Cobain’s widow Courtney Love, Universal Music Group and cover photographer Kirk Weddle. SPIN has reached out for comment from their respective representatives.