Spencer Elden, who was photographed as a baby for the cover of Nirvana‘s Nevermind, has successfully appealed his lawsuit against the band after it was dismissed.
As previously reported, Elden first sued the “Smells Like Teen Spirit” outfit in 2021, alleging that the Nevermind cover constituted child pornography. The famed artwork for the 1991 album features a photo of a four-month-old Elden swimming underwater naked while reaching for a dollar bill.
Surviving Nirvana members Dave Grohl and Krist Novoselic were named as defendants, as was Courtney Love as the executor of the late Kurt Cobain‘s estate. Defendants also include various record labels, as well as the Nevermind cover photographer.
In filing to dismiss the suit, lawyers for Nirvana argued that Elden’s claims were “not serious” and “absurd,” and that Elden has “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby."”
The suit was eventually dismissed in 2022 by the United States District Court for the Central District of California, citing the expired statute of limitations. Elden then appealed once more, and his argument was heard by the United States Court of Appeals for the Ninth Circuit in October 2023.
An opinion filed on Thursday, December 21, reads, “the district court erred in granting Defendants’ motion to dismiss on statute of limitations grounds,” and thus reverses and remands the decision.
“We hold that, because each republication of child pornography may constitute a new personal injury, Elden’s complaint alleging republication of the album cover within the ten years preceding his action is not barred by the statute of limitations,” the opinion continues.
The opinion only addresses the argument over the statute of limitations, and notes, “The question whether the Nevermind album cover meets the definition of child pornography is not at issue in this appeal.”
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