A federal appeals court has reversed the dismissal of Spencer Elden’s lawsuit against Nirvana over the use of his image on the cover of the band’s album Nevermind. To create the 1991 album’s artwork, photographer Kirk Weddle Elden’s father, a friend, $200 to photograph a nude four-month old Elden in a California pool. Elden, now 32, has argued that the image constitutes child pornography.
Elden first filed a child sexual exploitation suit against Nirvana, their labels, Weddle, and several other parties in 2021, noting that he was unable to consent to the use or reproduction of his likeness at the time the photo was taken. The case was initially dismissed in January 2022 after Elden failed to meet a deadline to respond to a motion for dismissal from Nirvana’s legal team, but Elden refiled an adjusted suit that same month. In September 2022, U.S. District Court Judge Fernando M. Olguin again dismissed Elden’s case due to an expired statute of limitations. Elden was barred from re-filing, but was offered an option to appeal.
The three-judge panel reversed Olguin’s ruling on Thursday in part on the grounds that “each republication” of child pornography “may constitute a new personal injury,” per the decision. However, a footnote read: “The question whether the Nevermind album cover meets the definition of child pornography is not at issue in this appeal.” The ruling also noted that Elden’s original complaint cited more recent reissues of the album cover, including a 30th anniversary edition of the album released in 2021. Since 1991, Elden himself has also recreated the cover multiple times.
Regarding the decision, a lawyer for Nirvana shared with Pitchfork in a statement: “This procedural setback does not change our view. We will defend this meritless case with vigor and expect to prevail.” A lawyer for Elden stated: “The wholesale worldwide commercial exploitation of a baby might be iconic, but that doesn’t make it right and certainly doesn’t make it legal.”
Pitchfork has reached out to representatives for Nirvana for comment and more information.
