Appeals Court reinstates Spencer Elden’s ‘Nevermind’ child pornography lawsuit

Spencer Elden, the baby on the cover art of Nirvana’s ‘Nevermind’ album, has had his child pornography lawsuit against the band reinstated by a US Court of Appeals.

• READ MORE: Nirvana’s ‘Nevermind’ at 30: a track-by-track guide from your favourite musicians

In September 2022, a US District judge in Los Angeles ruled that the ‘Nevermind’ cover image, which features a naked photograph of four-month-old Elden, did not constitute child pornography. That was the third time that Elden had attempted to sue the surviving members of the band – Dave Grohl and Krist Novoselic – as well as the estate of Kurt Cobain, photographer Krik Weddle and numerous record labels.

At that time, the court told Elden, now 32, that he would not be allowed to file a fourth lawsuit, and lawyers representing Nirvana dubbed the ruling a “final conclusion” to a saga that had begun back in August 2021.

However, in December 2022, Elden moved to appeal the court’s dismissal. He made the filing with California’s Ninth Circuit Court of Appeals, seeking monetary damages for “extreme ongoing psychic or emotional injury”, saying that the judge had ruled erroneously on the basis that the suit was bound to a statute of limitations.

Now, that court has reinstated his lawsuit in a ruling filed on Thursday (December 21). According to an official summary, the decision was made “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 was not barred by the statute of limitations.”

The ruling also states that “the question of whether the ‘Nevermind’ album cover meets the definition of child pornography is not at issue in this appeal.”

Reacting to the new ruling, a lawyer representing Nirvana has said: “This procedural setback does not change our view. We will defend this meritless case with vigor and expect to prevail.”

A legal representative 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.”

At the time of the appeal, Elden’s attorneys also claimed that Cobain had written “several journal entries” that “described his twisted vision for the ‘Nevermind’ album cover as a manifestation of his emotional and sexual disturbances”. They argued: “Cobain’s preoccupation with pornographic imagery started at a very early age. One of Cobain’s school classmates discovered him drawing pornography as a young child.”

Throughout, Nirvana’s lawyers have remained staunch on their stance that Elden “has been fully aware of the facts”, with Grohl himself noting that Elden has a tattoo based on the ‘Nevermind’ artwork. In addition to damages sought, Elden’s demands include Nirvana redacting the original ‘Nevermind’ cover for any potential re-releases. He looked to have it censored for the album’s 30th anniversary edition, but he was unsuccessful in this endeavour.