Nirvana album cover at center of lawsuit
Attorneys Andrew Stoltmann and Kelly Hyman joins 'Fox News @ Night' to discuss the case surrounding Nirvana's 'Nevermind' album
Legendary grunge pioneers Nirvana are at the center of legal trouble again after a federal appeals court revived a lawsuit filed two years ago by Spencer Elden, the man photographed swimming nude on the cover of the band's triple-diamond selling album "Nevermind" when he was just a baby.
The Ninth Circuit court ruled against the band and revived the suit on Thursday after a California judge threw out the case last year after Elden missed a deadline, but allowed him to refile a revised version. The revised version was also dismissed for being filed after the 10-year statute of limitations.
The court reasoned last week, however, that "each republication" of the image "may constitute new personal injury," including a 2021 re-release of the album for its 30th anniversary, and sent the case back to the lower court.
GERMANY - NOVEMBER 12: Photo of NIRVANA; L-R: Dave Grohl, Kurt Coabin, Krist Novoselic - posed, group shot (Photo by Paul Bergen/Redferns) (Paul Bergen/Redferns)
BABY FROM COVER OF NIRVANA'S ‘NEVERMIND’ SUES BAND CLAIMING IMAGE WAS CHILD PORNOGRAPHY
"We will defend this meritless case with vigor and expect to prevail," Bert H. Deixler, an attorney representing the legendary grunge group, said of the development in a statement, according to multiple reports. He also called the court's decision a "procedural setback."
Elden, now 32, initially filed the lawsuit against late vocalist Kurt Cobain's estate and the band's surviving members in addition to Universal Music Group in 2021, alleging the famed album cover was "child pornography" and claiming it led him to suffer "lifelong damage" from having his naked body plastered on such a public image.
He also claimed neither he nor his guardians agreed to the photoshoot and said the band went back on its promise to not expose his genitals on the cover. He was just four months old when the photo was taken at the Rose Bowl Aquatics Center in Pasadena, California, in 1991.
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Kurt Cobain performs with his group Nirvana at a taping of the television program "MTV Unplugged," New York, New York, Novemeber 18, 1993. (Photo by Frank Micelotta/Getty Images)
The cover was famously edited to include money dangling from a fishhook in front of Elden.
Elden's lawsuit filed at the time alleged the band, photographer and record labels "intentionally marketed Spencer’s child pornography and leveraged the shocking nature of his image to promote themselves and their music at his expense."
According to The Los Angeles Times, Elden seeks "an injunction on future sales, marketing and distribution, a jury trial and $150,000 from each defendant in actual damages as well as punitive damages."
A TIME Magazine interview from 2016 stated Elden has recreated the cover multiple times in adulthood and has a large tattoo that reads "Nevermind" on his chest.
NIRVANA LAWSUIT OVER ‘NEVERMIND’ ALBUM COVER DISMISSED BY JUDGE
Nirvana's "Nevermind" sits among a number of other albums inside a store in Israel. (Michael Jacobs/Art in All of Us/Corbis via Getty Images)
Despite it all, he told the outlet then that he "got upset" with the cover "for a bit."
"I was trying to reach out to these people. I never met anybody. I didn’t get a call or email. I just woke up already being a part of this huge project. It’s pretty difficult—you feel like you’re famous for nothing, but you didn’t really do anything but their album," he said.
The album has sold more than 30 million copies worldwide since being released in 1991.
Fox News' Jesse O'Neill contributed to this report.
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