US court revives Nirvana album cover lawsuit

The naked star of the rock band’s 1991 album cover claims ‘permanent harm’ and child pornography.

A United States court has revived a lawsuit accusing the rock band Nirvana of publishing child pornography by using a photograph of a naked four-month-old baby on the cover of its hit 1991 album Nevermind.

The 9th US Circuit Court of Appeals on Thursday overturned a lower court’s decision that the plaintiff, cover star Spencer Elden, had waited too long to bring his 2021 lawsuit against the seminal Seattle grunge band.

Elden, the baby depicted on the cover, filed the lawsuit against the grunge rock group two years ago, alleging 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 also claims that the image violated federal laws on child sexual abuse material, although no criminal charges were ever sought.

A federal judge in California threw out this lawsuit but allowed Elden, now 32 years old, to file a revised version. The judge then dismissed the revised suit on grounds that it was outside the 10-year statute of limitations of one of the laws used as a cause of action.

However, the appellate panel on Thursday 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.

According to the New York Times, the court also said that “the question whether the Nevermind album cover meets the definition of child pornography is not at issue in this appeal.”

Elden’s lawyer Robert Lewis said that Elden is “very pleased with the decision and looks forward to having his day in court”.

“This procedural setback does not change our view,” Nirvana lawyer Bert Deixler said after the court’s verdict. “We will defend this meritless case with vigour and expect to prevail.”