Child-Porn Claim From Nirvana ‘Nevermind’ Image Revived by Court

Nirvana shouldn’t have so easily escaped a child pornography lawsuit as time-barred because republication of the “Nevermind” album cover represented a new offense within the law’s statute of limitations, the Ninth Circuit said.

Spencer Elden, who was four months old when the cover photo of him floating naked underwater in a swimming pool was taken, correctly claimed a 2021 re-release of the grunge band’s hit album Nevermind could constitute a new violation, the US Court of Appeals for the Ninth Circuit said, reversing a federal district court’s dismissal of Elden’s suit. A 2006 law allows for action within 10 years of the victim turning 18 or of the later of the violation or resulting injury.

The three-judge panel revived the lawsuit and sent it back to the US District Court for the Central District of California.

The precedential opinion clarifies that even if the same entity had made a time-barred distribution of child pornography, it didn’t negate the right to file suit over subsequent republication of the same material within the 10-year period.

The unanimous opinion written by Circuit Judge Sandra Segal Ikuta noted that whether the image falls under the law’s definition of child pornography was not at issue in the appeal of the dismissal based on the statute of limitations.

“Nevermind,” the Washington state grunge band’s second studio album, became the title that launched them into superstardom, eventually selling tens of millions of copies. The iconic cover consists of a naked Elden floating in the water with a dollar bill on a fishing line in front of him. Ikuta noted that “commentators have opined” that the image “symbolizes the ills of a capitalistic society.”

The Los Angeles artist made headlines in 2016 when he recreated the image underwater in the same California pool for the 25th anniversary of the release of “Nevermind.” Elden suggested doing the updated version naked as well, but the photographer “thought that would be weird, so I wore my swim shorts,” he told the New York Post. His parents made $200 for the shoot for the then still-obscure band, his dad told NPR.

Elden filed his lawsuit in 2021 against Nirvana LLC, surviving band members David Grohl and Krist Novoselic, executor of late vocalist Kurt Cobain’s estate Courtney Love, and various music labels. Then 30, he alleged the band and record companies had continued to earn at least tens of millions of dollars from redistribution of the image, causing him ongoing injuries. He asked for monetary damages and an injunction against future distribution.

The US District Court for the Central District of California dismissed the case, finding Elden knew of the defendants’ allegedly criminal conduct for decades, including more than 10 years as a legal adult. The court rejected the argument that each new violation creates a new injury that restarts the clock, even if Elden knew of “the same criminal activities.”

But the appeals court panel found that nothing in the statute of limitations differentiates between original offenders and other parties who reproduce the works, and that the victim “logically” suffers the same injury either way. The defendants’ argument that renewed distribution is part of a “one-time” original offense is in tension with the law saying that an injury can occur after the initial offense when the defendant is no longer a minor, the opinion said.

“Like victims of defamation, victims of child pornography may suffer a new injury upon the republication of the pornographic material,” Ikuta wrote.

Advocacy groups The Canadian Centre for Child Protection and Child USA filed friend of the court briefs urging the panel to take the position it ultimately did recognizing that the law treats every distribution, even if repeated, as a new offense.

Circuit Judges Bridget S. Bade and Daniel A. Bress also sat on the panel.

Marsh Law Firm PLLC represents Elden. Kendall Brill & Kelly LLP represents the defendants.

The case is Elden v. Nirvana LLC, 9th Cir., No. 22-55822, reversed and remanded 12/21/23.