Appeals Court Reopens Child Pornography Case Over Nirvana Album Cover

The man who was a naked baby on the cover of Nirvana’s Nevermind album in 1991 sued the band for child pornography, claiming the photo was a sexualized image of a minor. The album cover is one of the most famous in rock history. Spencer Elden, who is now in his 30s, lost his case last year because the court said he filed it too late. But on Thursday, a federal appeals court reversed that decision and said he could sue again. The U.S. Court of Appeals for the Ninth Circuit said that every time the photo was republished – like in the 30th anniversary edition in 2021 – it could be a new “injury” to Elden that would restart the clock. “Victims of child pornography may suffer a new injury upon the republication of the pornographic material,” wrote Judge Sandra Segal Ikuta 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.”

This does not mean Elden has won his lawsuit. He still has to go back to a lower court and show that the photo is actually child pornography – which Nirvana and some legal experts strongly deny.

Nirvana’s lawyer Bert Deixler said that the ruling was a “procedural setback” that did not change their main arguments: “We will defend this meritless case with vigor and expect to prevail.”

Elden’s lawyer Robert Lewis said in a statement: “Spencer is very pleased with the decision and looks forward to having his day in court. The decision is important for all child pornography victims.” Nevermind was released on Sept. 24, 1991 and became a huge hit. It reached number one on the Billboard 200 in January 1992 and stayed on the chart for 554 weeks. The album sold more than 30 million copies and is widely regarded as one of the most influential in the history of popular music.

The cover of the album showed a nude baby in a pool chasing a dollar on a fishhook. Many people saw it as a sharp comment on greed and capitalism. But Elden said in his 2021 lawsuit that it was something else: the kind of “lascivious” display of a minor’s genitals that’s banned under federal child pornography laws.

“Spencer’s true identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day,” he said then.

The lawsuit named not only Nirvana’s company, but also Kurt Cobain’s estate, Universal Music Group, Dave Grohl and others. It was a civil lawsuit, and no one was accused of any crimes. Nirvana argued that the lawsuit should be thrown out for a simple reason: the statute of limitations. They said that Elden had known about the photo and his role in it for a long time, even before the 10-year deadline.

“Long before 2011, as Elden has pled, Elden knew about the photograph, and knew that he (and not someone else) was the baby in the photograph,” the band said in their motion to dismiss the case. “He has been fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades.”

A federal judge agreed with Nirvana in September 2022. He said that the 10-year time limit started when a victim “reasonably discovers” either the crime or the injury caused by it – and that Elden had clearly missed the deadline.The Ninth Circuit's decision means that Elden can sue Nirvana for the recent republication of the photo, even if he cannot sue for the original publication or the earlier ones. The court said that this was similar to how defamation cases and other cases that affect a person's dignity are handled, where a new publication can cause a new harm. The court also said that child pornography victims suffer more when they know that their images or videos are being circulated online, as the Supreme Court has recognized. The court said that if a victim does not sue the first time they learn that someone has distributed their child pornography, but then finds out that they have done it again later, they can still sue for that new harm, even if the statute of limitations has expired.