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Nevermind baby makes filing with US appeals court in ongoing artwork dispute

By Chris Cooke | Published on Tuesday 6 December 2022

Last week Spencer Elden – who, as a baby, appeared nude on the famous cover of Nirvana’s ‘Nevermind’ album – continued his legal battle in relation to that artwork, filing papers with the Ninth Circuit Appeals Court in the US.

Elden sued Nirvana, their label and other people involved in creating the ‘Nevermind’ cover in August 2021. Claiming that Elden’s guardians did not know how the nude baby photo would be used when it was originally taken, the lawsuit said that the defendants “knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so”.

Various arguments were presented by the defendants countering those claims, though the key legal argument was that Elden had left it too late to sue. With the specific laws Nirvana et al are accused of violating, there is a ten year statute of limitations.

That doesn’t mean that Elden would have had to sue within ten years of the photograph being taken, but – technically speaking – he should have gone legal within ten years of his eighteenth birthday. So the deadline for filing the lawsuit was 2019.

Elden’s lawyers said that that statute of limitations should be ignored because Nirvana and their label continue to distribute ‘Nevermind’ with Elden’s image on it, meaning that they continue to harm their client even today.

But earlier this year the judge overseeing the case said Team Elden was wrong about the statute of limitations and that it did apply. And as a result Elden’s lawsuit was dismissed.

Following that ruling, the litigation has now moved onto the Ninth Circuit. In a new legal filing with that court, Elden’s attorneys argue that the lower court’s decision to dismiss their clients lawsuit on statute of limitation grounds was “erroneous for a host of reasons”.

The new filing again hones in on the continued distribution of the ‘Nevermind’ artwork, while also stressing that the harm caused to Elden by the album cover, while initiated when he was a child, continues to this day. Therefore, the argument goes, the statute of limitations does not apply, because harm occurred in the last ten years.

And, Team Elden go on, US law – in particular what is known as Masha’s Law – has been written to allow for action to be taken in circumstances and with timelines such as those in this case.

“A plethora of legislative history and case law support this reading of [current law]”, the new filing states. “Those authorities uniformly speak of the need to allow claims for violations occurring during a victim’s adulthood because (i) child pornography can be distributed indefinitely and (ii) each separate distribution (even in adulthood) necessarily infringes a victims’ dignity interest”.

With that in mind, Elden’s team state: “The court should reverse the district court’s erroneous dismissal and allow Spencer his day in court”.

We await to see how the Nirvana side respond.