"Every viewing of child pornography is a repetition of the victim’s abuse": US court reinstates right of 'Nevermind baby' Spencer Elden to sue Nirvana over iconic album sleeve

(Image credit: DGC)

A federal appeals court in the US has ruled that Spencer Elden, the man who was photographed as a four-month-old baby for an image used on the cover of Nirvana's Nevermind album, can revive his case to sue the band, their record company, and the photographer who shot the iconic picture, for alleged child pornography.

Elden originally filed the lawsuit against Nirvana in August 2021, claiming that the cover image is child pornography, and sought $150,000 in damages. At the time, the band’s legal representatives argued that that Elden had “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’”, and Dave Grohl and Krist Novoselic, had dismissed Elden’s case as “not serious”.

On September 3, 2022, U.S. District Judge Fernando Olguin in Los Angeles issued an eight-page ruling stating that Elden waited too long to file the lawsuit claiming that Nirvana sexually exploited him, based on a 10-year statute of limitations.

“In short, because it is undisputed that [Elden] did not file his complaint within ten years after he discovered a violation…the court concludes that his claim is untimely,” Olguin wrote.

Elden had filed three versions of his complaint, and Olguin's dismissal was said at the time to have barred him from filing again. However, a new federal appeals court ruling has over-turned that decision and reinstated Elden's right to proceed with his case, which he had set out in an amended lawsuit filed in January 2022. 

Publishing its decision online, the United States Court of Appeals for the Ninth Circuit states "because Elden's claim is not barred by the ten-year statute of limitations... the district court erred in granting the Defendants' motion to dismiss on statute of limitations grounds."

"Like victims of defamation, victims of child pornography may suffer a new injury upon the republication of the pornographic material," the ruling states. "Accordingly, we conclude that each republication of child pornography can constitute a new personal injury analogous to injuries caused by defamation and other dignitary torts. This conclusion is consistent with the Supreme Court’s view that ‘every viewing of child pornography is a repetition of the victim’s abuse'."

The appeals court decision means that the case can go back to a federal court in Los Angeles.

"This procedural setback does not change our view," defence lawyer Bert H. Deixler wrote in a statement sent to Rolling Stone. "We will defend this meritless case with vigor and expect to prevail.” 

Paul Brannigan
Contributing Editor, Louder

A music writer since 1993, formerly Editor of Kerrang! and Planet Rock magazine (RIP), Paul Brannigan is a Contributing Editor to Louder. Having previously written books on Lemmy, Dave Grohl (the Sunday Times best-seller This Is A Call) and Metallica (Birth School Metallica Death, co-authored with Ian Winwood), his Eddie Van Halen biography (Eruption in the UK, Unchained in the US) emerged in 2021. He has written for Rolling Stone, Mojo and Q, hung out with Fugazi at Dischord House, flown on Ozzy Osbourne's private jet, played Angus Young's Gibson SG, and interviewed everyone from Aerosmith and Beastie Boys to Young Gods and ZZ Top. Born in the North of Ireland, Brannigan lives in North London and supports The Arsenal.