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Civil Procedure

9th Circuit reinstates suit by now-grown-up Nirvana album-cover baby

By Debra Cassens Weiss

December 22, 2023, 11:37 am CST

A federal appeals court has reinstated a lawsuit filed by a man who claimed that he was a victim of child pornography because he appeared naked on Nirvana’s 1991 grunge album cover Nevermind when he was a baby.

The 9th U.S. Circuit Court of Appeals at San Francisco ruled Thursday that the suit by plaintiff Spencer Elden was not barred by the 10-year statute of limitations.

Law360, Reuters, Bloomberg Law and Courthouse News Service have coverage.

The appeals court ruled that the suit was not barred because it alleged that the 1991 album cover was republished, including in 2021, constituting a new personal injury.

The photo showed Elden, then 4 months old, naked in a pool floating toward a dollar bill on a hook. Elden sued under a federal law authorizing civil suits for personal-injury damages for victims of child pornography.

Judge Sandra Segal Ikuta, an appointee of former President George W. Bush, wrote the opinion, Elden v. Nirvana.

The statute requires the suit to be filed 10 years after a plaintiff reasonably discovers either the violation or the injury that forms the basis for the claim. A second provision provides an alternative, allowing suits to be filed within 10 years of a victim’s 18th birthday, which isn’t at issue in the case.

“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 [in the law] does not prevent the plaintiff from bringing a claim based on that new injury,” Ikuta wrote.

U.S. District Judge Fernando M. Olguin of the Central District of California had tossed the suit in September 2022 for being filed too late.

Defendants in the suit included surviving band members, the estate of Kurt Cobain and Cobain’s widow, Courtney Love.

See also:

“Judge gives ‘Nirvana Baby’ ‘one last opportunity’ to revive lawsuit over child porn, trafficking claims”