The United States Court of Appeals for the Ninth Circuit has revived the child pornography lawsuit against Nirvana over the use of Spencer Elden‘s child image on the Nevermind album cover.
The decision by appeals court comes more than a year after a California district court dismissed the lawsuit.
The official summary of the new ruling published on Thursday (December 21) says the appeals court reversed the district court’s decision saying “each republication of child pornography may constitute a new personal injury, and Elden’s complaint alleging republication of the album cover within the ten years preceding his action was not barred by the statute of limitations.”
Elden sued Krist Novoselic, Dave Grohl and Courtney Love (representing the estate of Kurt Cobain), as well as Universal Music Group, Geffen Records, photographer Kirk Weddle, and other parties in August 2021 over the use of his image as a naked 4-month-old baby on the Nevermind album cover.
He alleged in the lawsuit that he was “extensively exploited by the Defendants who have knowingly possessed, transported, reproduced, advertised, promoted, presented, distributed, provided, and obtained commercial child pornography depicting [Elden].”
Nirvana and the other parties sought dismissal of the lawsuit in December 2021, arguing that Elden “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.'”
After the court dismissed his lawsuit, Elden refiled it in January 2022, but U.S. judge Fernando Olguin dismissed it, ruling that the complaint was filed past the 10-year statute of limitations.
The United States Court of Appeals for the Ninth Circuit noted in its ruling that Elden’s complaint “does allege new injuries, stemming from the Defendants’ redistribution of the album cover during the ten years prior to the action,” including the 30th anniversary box set that was released in 2021.
The appeals court concluded, “Because Elden’s claim is not barred by the ten-year statute of limitations set forth in § 2255(b)(1)(B), the district court erred in granting Defendants’ motion to dismiss on statute of limitations grounds.”
In addition to seeking monetary compensation, Elden has requested that the cover artwork be changed for all future re-releases of Nevermind.
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