The lawsuit by Spencer Elden, now a 32-year-old artist, against the grunge rock hitmakers alleges that he has suffered “permanent harm” as the band and others profited from the album cover. The photograph shows him naked underwater in a swimming pool, appearing to reach for a dollar bill on a fish hook.
The suit alleges that the image violated federal laws on child pornography, although no criminal charges were ever sought.
A federal judge in California threw out the lawsuit last year but allowed Elden to file a revised version; that revision was later dismissed on grounds that it was filed outside of the 10-year statute of limitations on one of the laws that was used as a cause of action. Thursday’s decision by a three-judge panel of the Ninth U.S. Circuit Court of Appeals in California reversed that ruling and revived the case, sending it back to the lower court.
The appellate panel 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.
“Spencer Elden alleges that he was the victim of a child pornography offense when (as a four-month-old baby) he was photographed naked in a pool for the cover of Nirvana’s iconic album ‘Nevermind,’” reads the lawsuit obtained by The Times. “Now an adult, Elden argues that the continued use of this photo causes ongoing personal injuries. 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 set forth.”
Nirvana attorney Bert Deixler called the ruling a “procedural setback” in an email to The Times. “We will defend this meritless case with vigor and expect to prevail.”
The case, originally filed in U.S. District Court in California in August 2021, was dismissed last year after Elden missed a deadline. It was reopened and amended in January 2022 when the California resident filed a second amended complaint that alleged the photo had been taken and used without his consent.
“[D]uring the ten years preceding the filing of this action, each Defendant knowingly possessed, transported, reproduced, advertised, promoted, presented, distributed, provided, and/or obtained child pornography depicting Spencer, who had not attained the age of 18 years when this image was printed on the cover of Nirvana’s ‘Nevermind’ album,” said the complaint, obtained by The Times.
Elden is seeking an injunction on future sales, marketing and distribution, a jury trial and $150,000 from each defendant in actual damages as well as punitive damages.
The defendants named in the lawsuit include the surviving members of Nirvana, Dave Grohl and Krist Novoselic, as well as the late Kurt Cobain’s widow, Courtney Love, who is the executor of his estate, plus photographer Kirk Weddle, drummer Chad Channing and a number of record companies connected to the album.
The revised and updated pleadings include new information about the creation of the album cover, including images and materials that allegedly illustrate the various ways the “Nevermind” creators have profited since the album’s release. The album hit No. 1 on the Billboard 200 chart three months after its release and ultimately went platinum.
“Appellees have sold well over 30 million copies of Nevermind and they continue to the present day to sell and profit handsomely from the album featuring Spencer’s image,” the lawsuit says. “Appellees have also commercially exploited the Nevermind album cover separately from the album itself, licensing the cover for Snapchat filters, T–shirts, posters, and other merchandise.”
Attorneys for the defendants did not immediately respond to The Times’ request for comment on Friday.
The Associated Press and Nardine Saad contributed to this report.