- A federal court in California dismissed the lawsuit last year because the complaint was filed after the 10-year statute of limitations. The U.S. Court of Appeals for the 9th Circuit sent the lawsuit back, saying republication of the album’s image “may constitute a new personal injury,” and would essentially reset the clock on these limitations.
- Elden’s attorneys said in October that they are looking to prevent the continued distribution of the album. Universal Music Group has republished and re-promoted the album in many forms since its initial release, including a 30th anniversary edition.
- Robert Lewis, an attorney with the firm representing Elden, said Thursday’s decision to reinstate the lawsuit “acknowledges that each republication of a sexualized image of a child injures that person’s reputation.”
- In a statement, Nirvana’s attorney Bert Deixler called Thursday’s ruling a “procedural setback.” “We will defend this meritless case with vigor,” Deixler said.
Few albums have revolutionized youth culture and driven mainstream success in the way that the Washington state-based rock band did with its sophomore album, “Nevermind.” It has sold more than 30 million copies worldwide since its 1991 release. The grunge rock album reached No. 1 on the U.S. Billboard 200. The album’s lead single, “Smells Like Teen Spirit,” is in the Grammy Hall of Fame.
The cover depicts a naked 4-month-old Elden floating underwater as he reaches for a dollar bill latched onto a fishhook. Elden’s lawsuit says there was no formal waiver or permission in place to photograph him.
Thursday’s ruling directly involves potential child pornography cases, but John C. Manly, a Los Angeles based attorney who specializes in childhood sexual abuse cases, said it could have greater implications for cases relating to stolen images or media distributed without the subject’s consent, such as in revenge porn or nudes involving minors.
Lawyers that specialize in child pornography and exploitation laws also told The Washington Post that the rise of reproducing images on social media and digital spaces also make this case significant, and could lead to civil lawsuits.
“This really says — if you take that imagine and put it out in cyberspace, every time somebody reposts that image, it potentially restarts the statute against the wrongdoer,” Manly said.
Elden’s life after ‘Nevermind’
Elden told Time magazine in 2016 that it’s taken decades to come to terms with the fame from the album cover, for which he said he hasn’t received financial compensation. In an interview with GQ, he said the photo has been the subject of embarrassment among friends or romantic partners who have ended their relationship with him once they found out he hasn’t made a profit off the cover.
His attitude about the photo has varied over the years. He’s been photographed in re-creations of the image, with his clothes on, and has tattooed “Nevermind” across his chest.
But Elden told GQ that he’s upset his legacy has been defined by something he had no control over. He’s said it’s difficult to see others who have profited off the album’s sales while his finances have struggled.
“I’m just trying to get it out of my head — this image of a baby chasing a dollar — and not worry about making millions of dollars,” Elden said in the interview with Time.
Jonathan Edwards contributed to this report.
