A federal judge on Friday (Sept. 2) sided with Nirvana and dismissed a child pornography lawsuit filed by the man who appeared as a nude baby on the cover of the band’s 1991 album Nevermind, ruling that the case was filed years too late.
Spencer Elden, now in his 30s, claimed the album violated federal child pornography laws by displaying a sexualized image of a minor. But Judge Fernando M. Olguin ruled that the case was filed well past the statute of limitations for such cases.
Federal child pornography laws have a 10-year time limit that starts from when a victim “reasonably discovers” either the crime or the injury caused by it. Under either time limit, Judge Olguin said Elden had clearly filed his case too late.
“Because it is undisputed that plaintiff did not file his complaint within ten years after he discovered a violation that could form the basis for his [child pornography] claim, the court concludes that his claim is untimely,” the judge wrote.
In a statement to Billboard, Elden’s attorneys vowed to appeal a ruling that they called an “unprecedented interpretation” of federal child pornography law: “Spencer’s victimization as a child remains frozen in time. His childhood self continues to be invaded and he will be repeatedly victimized as long as the Nevermind cover continues to be distributed.”
Originally released Sept. 24, 1991, Nevermind reached the top spot on the Billboard 200 in January 1992 and ultimately spent 554 weeks on the chart. The album has sold more than 30 million copies and is widely considered one of the most influential in the history of popular music.
The album’s cover — a nude infant swimming in a pool chasing after a dollar attached to a fishhook — had long been interpreted as an edgy critique of greed and capitalism. But in a lawsuit filed last summer, Elden claimed it was something else entirely: the kind of “lascivious” display of a minor’s genitals that’s prohibited under federal child pornography statutes.
“Spencer’s true identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day,” he wrote at the time.
In addition to Nirvana’s corporate entity, the lawsuit also named Kurt Cobain’s estate, Universal Music Group, Dave Grohl and a number of other companies and individuals.
Nirvana sharply disputed that the image amounted to child pornography, but argued first that the case should be dismissed for a simpler reason: the statute of limitations. They cited the fact that Elden had seemingly endorsed his role in rock history on a number of occasions, including prior to 2011 – the cutoff year for the 10-year statute of limitations.
“Long before 2011, as Elden has pled, Elden knew about the photograph, and knew that he (and not someone else) was the baby in the photograph,” the band wrote in its motion to dismiss the case. “He has been fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades.”
On Friday, Judge Olguin embraced that argument, saying it had been well more than 10 years since Elden discovered either the violation – the image itself – or the injury caused by it.
“Plaintiff does not dispute that he knew of injuries arising from defendants’ activities related to their use of his image on the Nevermind album cover more than ten years before he filed this action,” the judge wrote.