A federal court has revived the lawsuit against Nirvana over their 'Nevermind' naked baby album cover. The baby depicted in the image is once again suing the legendary rock band, accusing the band and its label Universal Music Group of sexually exploiting him.
ADVERTISEMENTIt’s one of the most famous album covers of all time.
Nirvana’s second album, ‘Nevermind’ - featuring songs like 'Smells Like Teen Spirit', 'Come As You Are' and 'Something In The Way' - has sold more than 30 million copies worldwide, and the artwork is interpreted by many as the legendary band making a statement on capitalism.
The baby on the 1991 cover, a four-month-old tot who swims to reach a dollar on a fishhook, Spencer Elden (now 32-years-old), previously sought damages from the surviving members of the band (Dave Grohl and Krist Novoselic), as well as the estate of the late Kurt Cobain and photographer Kirk Weddle.
A federal judge in California threw out the lawsuit last year but allowed Elden to file a revised version, which the judge later dismissed on grounds that it was outside the 10-year statute of limitations of one of the laws used as a cause of action.
Now, a federal appeals court has revived a child sexual exploitation lawsuit filed by Elden. His lawsuit against the grunge rock group alleges that he has suffered “permanent harm” as the band and others profited from the image of him underwater in a swimming pool.
The suit says the image violated federal laws on child sexual abuse material, although no criminal charges were ever sought.
This new decision by a three-judge panel of the Ninth US Circuit Court of Appeals in California reversed that ruling and sent the case 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.
“The question whether the ‘Nevermind’ album cover meets the definition of child pornography is not at issue in this appeal,” the court wrote, according to the New York Times.
"This procedural setback does not change our view," Nirvana lawyer Bert Deixler stated, adding they will defend this "meritless case with vigour".
In a previous statement, representatives for Nirvana cited occasions where Elden had embraced being featured on the artwork, claiming that he had “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby'”.
"He has reenacted the photograph in exchange for a fee, many times; he has had the album title 'Nevermind' tattooed across his chest; he has appeared on a talk show wearing a self parodying, nude-colored onesie; he has autographed copies of the album cover for sale on eBay; and he has used the connection to try to pick up women," they said.
Elden's lawyer, Robert Lewis, said his client is "very pleased" with the new decision and "looks forward to having his day in court".
