LOS ANGELES (CN) — The man whose photo — taken at four months old and with his penis in full view — for the cover of Nirvana's classic 1991 album "Nevermind" won new chance to pursue his child pornography claims against the former members of the Seattle grunge band and the estate of the late Kurt Cobain.
A panel of the Ninth Circuit Court of Appeals on Thursday ruled that a trial judge had erred last year in dismissing Spencer Elden's lawsuit as untimely.
Citing the U.S. Supreme Court’s holding that “every viewing of child pornography is a repetition of the victim’s abuse,” the appellate judges agreed with Spencer Elden that he could sue for damages for the personal injuries he claims to have suffered from republications of the "Nevermind" album cover within the 10 years statute of limitations preceding his 2021 lawsuit.
"Logically, the child pornography victim suffers the same injury whether a new individual or the original creator redistributes the image," U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, wrote in the unanimous decision. "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."
The ruling didn't take up the fundamental question whether the iconic image of the submerged baby eyeing a dollar bill on a fishhook dangled in front of him amounted to child pornography because that issue wasn't addressed by the judge who dismissed Elden's complaint.
"This procedural setback does not change our view," Bert Deixler, an attorney for the record company and the individual defendants, said. "We will defend this meritless case with vigor and expect to prevail."
In his lawsuit filed in Los Angeles federal court, Elden claimed that he has suffered physical, psychological, financial and reputational damage during the previous 10 years. He sought at a minimum $150,000 in statutory damages from each of the named defendants, which also include Universal Music, as well as attorneys' fees.
Elden however failed to persuade U.S. District Judge Fernando Olguin that the 10-year cap for civil claims didn't apply to the harm he claims to suffer still because of his depiction on the album cover. Contrary to Elden's contentions, the judge said, the law under which he sued for damages applies to harm he may have suffered as a minor, not as a grown man.
Universal Music and the former band members rebuked the claim the album cover amounts to child pornography, saying that under the law any nudity must be coupled with "other circumstances that make the visual depiction lascivious or sexually provocative" to fall within the parameters of the child pornography statute.
In their request to dismiss the lawsuit, the defendants said Elden had spent 30 years 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," the defendants said in their motion to dismiss.
The "Nevermind" album cover has become iconic and highly recognizable, the Ninth Circuit panel acknowledged in its opinion. It has been displayed in the Museum of Modern Art in New York and has been frequently referenced, imitated, and parodied. The image of the naked baby reaching for a dollar bill is often viewed as symbolizing the ills of a capitalistic society.
The album rose to the top of the Billboard 200 within three months after its 1991 release and has sold 30 million copies. In addition to album sales, Nirvana has licensed the cover image for various other merchandise, including Snapchat filters, T-shirts and posters.
“Spencer is very pleased with the decision and looks forward to having his day in court," Elden's attorney Robert Lewis said. "The decision is important for all child pornography victims because it acknowledges that each republication of a sexualized image of a child injures that person’s and emotional well-being, much like a defamatory statement, even though Nirvana continues to republish the sexualized image of Spencer.”
U.S. Circuit Judges Bridget Bade and Daniel Bress, both Donald Trump appointees, rounded out the panel.
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