It all started in August 2021 when Spencer Elden, the nude baby on the front cover of Nirvana's classic 1991 Nevermind album, sued Nirvana and their associates over allegations that the image is child pornography. The suit was eventually stopped in 2022 when a federal judge ruled in favor of Nirvana, saying that Elden had filed his case past the 10-year time limit.
Then on Thursday, December 21, 2023, the U.S. Court of Appeals for the Ninth Circuit revived the case. According to Billboard, the court ruled that each new republication of Nevermind constituted a new "injury" against Elden, citing the band's 2021 30th anniversary reissue campaign. The court argued that this reissue reset the statue of limitations in the case, and that it can now proceed in a lower court.
"Victims of child pornography may suffer a new injury upon the republication of the pornographic material," Judge Sandra Segal Ikuta wrote. "This conclusion is consistent with the Supreme Court's view that every viewing of child pornography is a repetition of the victim's abuse."
Of course the case proceeding doesn't mean that Elden won – it just means that Elden can now retry his argument against Nirvana and their associated parties.
"The online dissemination of child pornography haunts victims long after their original images or videos are created," wrote the court in their ruling. "As the Supreme Court has explained, the victim's knowledge of publication of the visual material increases the emotional and psychic harm suffered by the child."
They later added: "If a victim learns a defendant has distributed child pornography and does not sue, but then later learns the defendant has done so again many years later, the statute of limitations… does not prevent the plaintiff from bringing a claim based on that new injury."
In a statement to Billboard, Nirvana's attorney Bert Deixler said the band's legal team "will defend this meritless case with vigor and expect to prevail." Robert Lewis, lead counsel for Elden, had a very different opinion and offered: "Spencer is very pleased with the decision and looks forward to having his day in court. The decision is important for all child pornography victims."
Nirvana's camp previously called Elden's lawsuit "not serious," claiming that Elden has "spent three decades profiting from his celebrity as the self-anointed 'Nirvana Baby'" and asserted that his lawsuit "will fail on the merits." The parties also make the argument that a photo of a naked baby is not child pornography, while drummer Dave Grohl commented at the time saying "Listen, [Elden] got a Nevermind tattoo. I don't."
