After being shot down by a Los Angeles judge in 2022, a lawsuit filed against Nirvana in regards to the cover art for their 1991 album Nevermind has been revived by a panel of the U.S. 9th Circuit Court of Appeals.
Spencer Elden, the now-thirtysomething who was the cover star of the album in question, originally made the claim that the shot of him swimming towards a dollar bill on a fish hook was little more than child pornography and, as such, violated federal child pornography laws by displaying a sexualized image of a minor. US District Judge Fernando Olguin of Los Angeles disagreed and declared that Elden had waited far too long to take legal action against the band's members, their record labels, and the photographer of the cover, Kirk Weddle. The aforementioned appeals court, however, has ruled that each new republication of the image could constitute a new “injury” to Elden, which in turn would reset the statute of limitations.
“Victims of child pornography may suffer a new injury upon the republication of the pornographic material,” Judge Sandra Segal Ikuta wrote for a three-judge panel. “This conclusion is consistent with the Supreme Court’s view that every viewing of child pornography is a repetition of the victim’s abuse.”
To clarify, this ruling does not mean that Elden has won the case. It merely means that his lawsuit may now return to a lower court, and when it does, he will be forced to prove that the cover art for Nevermind actually constitutes child pornography, which - considering how many copies of the album have been sold at this point - could well be an uphill fight.
In a statement to Billboard, Nirvana's attorney, Bert Deixler, seemed relatively unruffled by the decision, merely describing the decision as a "procedural setback" and adding, “We will defend this meritless case with vigor and expect to prevail.”
On the flip side, Robert Lewis, Elden's lead counsel, told Billboard, “Spencer is very pleased with the decision and looks forward to having his day in court. The decision is important for all child pornography victims.”
Originally released in September 1991, Nevermind landed atop the Billboard 200 in January 1992 and to date has sold more than 30 million copies. It is regularly cited as one of the most influential rock albums of all time and served to define the grunge movement of the 1990s, with its cover art generally perceived as a statement against greed and capitalism.
Elden's original lawsuit, filed in August 2021, named Kurt Cobain's estate and his former bandmates, Dave Grohl and Krist Novoselic, along with photographer Kirk Weddle, Universal Music, Geffen Records, Warner Records and MCA Music. In it, he sought at least $150,000 in damages from each defendant, along with legal fees.
In an interview with CNN at the time of the original filing, Elden's attorney, Maggie Mabie said of the cover, “The focal point of the image is the minor’s genitalia. It is a very over-sexualized image, and does constitute child pornography. More importantly, it was child exploitation in the way that they created it, and the way that they continue to distribute the image today.”
In response, CNN interviewer Chris Cuomo observed that Elden had not only recreated the cover art at least four times for various publication and had the word “Nevermind” tattooed on his chest and asked, "You think that this man is really a good face for the pain of child pornography?”