The Ninth Circuit Appeals Court in the US has revived a lawsuit which claims that the cover of classic Nirvana album ‘Nevermind’ constitutes “child pornography”, with appeal judges concluding that a lower court was wrong to dismiss the case based on the statute of limitations.
The lawsuit was filed against Nirvana in August 2021 by Spencer Elden who appears, as a baby, in the artwork. The band's lawyers argued that, with the specific claims being made, Elden should have launched his litigation no later than 2019. However, the Ninth Circuit has ruled that, because Nirvana continue to sell copies of ‘Nevermind’ that feature the original artwork, that deadline does not apply.
Elden appears nude on the ‘Nevermind’ artwork, of course. It was on that basis that his lawsuit claimed that the band and their label “knowingly produced, possessed and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so”.
In response, Nirvana pointed out that Elden had previously spoken positively about his appearance on the legendary album cover and that he had recreated the image multiple times as a teenager and adult, albeit wearing shorts. However, the key legal argument centred on the timing of the lawsuit.
Nirvana's lawyers noted that there is a ten year statute of limitations for the legal claims contained in Elden's lawsuit. Although, given the photos were taken when Elden was a baby, legal action was required within ten years of Elden turning eighteen rather than from when the photo was taken. Nevertheless, that was 2019. The original judge hearing the case agreed that Elden had therefore waited too long to go legal. As a result, his lawsuit was dismissed.
However, Elden's lawyers countered that, because Nirvana continue to sell copies of ‘Nevermind’, they continue to cause new harm to Elden to this day, and therefore the statute of limitations should not apply. With that in mind, they took the matter to the appeals court, which has now sided with Elden.
“We hold that, because each republication of child pornography may constitute a new personal injury”, the Ninth Circuit judges wrote, “Elden’s complaint alleging republication of the album cover within the ten years preceding his action is not barred by the statute of limitations”.
As a result, the lawsuit will now return to the lower court. A legal rep for Nirvana told the Associated Press that the ruling was a “procedural setback” and that his clients will continue to “defend this meritless case”.