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Nirvana respond to appeal in Nevermind baby case

By | Published on Monday 6 February 2023

Nirvana - Nevermind (Censored)

Nirvana and Universal Music have filed a response to the appeal in the ongoing legal battle over the famous artwork that appears on the album ‘Nevermind’.

This litigation was instigated by Spencer Elden who, as a baby, appeared nude on the cover of Nirvana’s 1991 album.

Despite having previously talked positively about appearing on the album artwork, in August 2021 Elden went legal, claiming that Nirvana and their label “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.

However, last year the judge overseeing the case sided with Nirvana and ruled that the statute of limitations does apply. As a result, he dismissed the lawsuit. Elden then filed an appeal with the Ninth Circuit Appeals Court.

It’s that appeal that Nirvana and Universal responded to last week. The new legal filing again explains how Elden previously spoke positively of the ‘Nevermind’ artwork before changing his mind and filing the lawsuit in 2021. Though much of the new filing focuses on the statute of limitations debate.

“Elden does not dispute he was over the age of 28 at the time of filing”, it states. “Nor does he deny that he had known, for essentially his entire life, about his depiction in the photograph and each of the appellees’ identities and role in its commercial use”.

However, of course, Elden argues that the continued distribution of ‘Nevermind’ means that the statute of limitations should be set aside, because an incident from his childhood has continued to cause harm into his adulthood.

But, Nirvana and Universal argue, the lower court judge was right to reject that argument. Elden’s team, they add, are incorrectly interpreting what the law says about the statute of limitations in cases like this. Indeed, they reckon, the law is very clearly on the side of Nirvana and Universal here.

“Elden cannot escape the plain language of the statute, the legislative history, the rules of statutory construction and the consistent case law”, the new legal filing declares.

We await to see if the Ninth Circuit judges are as easily pursued of Nirvana’s arguments as the lower court.