(CN) — The man whose picture as a four-month-old baby with his penis in full view was used on the cover of Nirvana's classic 1991 album "Nevermind" asked the Ninth Circuit Court of Appeals to reinstate his child pornography claims against the former members of the Seattle grunge band and the estate of the late Kurt Cobain.
Robert Lewis, an attorney representing "Nirvana baby" Spencer Elden, argued Wednesday at a hearing in Phoenix that the judge who threw out the case last year had misconstrued the 10-year statute of limitations that the judge applied to his client's claim.
Each time the album is sold, distributed or possessed, Lewis told the three-judge panel, constitutes a new injury to Elden.
"That is, Your Honors, the gravamen of this case — a recognition that every distribution and possession of child pornography, even in adulthood, is a re-perpetration of the initial perpetration," Lewis said. "Spencer Elden has been and continues to be victimized by these defendants."
The question before the federal appellate court wasn't whether the iconic image of the submerged baby eyeing a dollar bill on a fishhook in front of him amounted to child pornography because that issue wasn't addressed by the judge who dismissed Elden's complaint.
Rather, the appellate judges must determine how to interpret the timeliness of claims brought under federal statute known as Masha's Law, which provides victims of child pornography a civil remedy against their abusers.
The law, at least at the time Elden filed his lawsuit, gave victims 10 years from the time they become aware of a violation or injury — or 10 years after their 18th birthday — to sue.
U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, and the Trump-appointed U.S. Circuit Judges Bridget Bade and Daniel Bress didn't indicate how they would rule on the appeal.
In his lawsuit filed in Los Angeles federal court, Elden claimed that he has suffered physical, psychological, financial and reputational damage during the past 10 years. He sought at a minimum $150,000 in statutory damages from each of the named defendants, which also include the record label, as well as attorneys' fees.
Elden however failed to persuade U.S. District Judge Fernando Olguin that the 10-year cap for civil claims didn't apply to the harm he claims to suffer still because of his depiction on the album cover. Contrary to Elden's contentions, the judge said, the law under which he sued for damages applies to harm he may have suffered as a minor, not as a grown man.
Bert Deixler, an attorney for the band members and Universal Music, reiterated the outcome during Tuesday's hearing.
"The court found that the notion of him having discovered a violation for the first time after he was 28 is completely unsupported by the record, completely unsupported by the amended complaint," Deixler said.
Under Elden's interpretation, each of the 30 million people who presumably own a copy of "Nevermind" are creating a new violation every single day, and thereby reset the statute of limitations every single day, and could be sued by Elden, Deixler argued.
"It is inconsistent with the notion of any statute of limitations," Deixler said.
Lewis said in response that Elden has no intention to sue Nirvana fans who bought the album because it would require showing the album owners knew they were sexualizing the image of a baby. Nirvana, on the other hand, knew that this is what they were doing because, according to Lewis; Kurt Cobain's diaries show that he was interested in sadomasochistic abuse of children.
Nirvana and the record company have said Elden has known all along that he was depicted in the nude on "Nevermind," and spent 30 years profiting from his celebrity as "the self-anointed 'Nirvana Baby.'"
"He has reenacted the photograph in exchange for a fee, many times; he has had the album title 'Nevermind' tattooed across his chest; he has appeared on a talk show wearing a self-parodying, nude-colored onesie; he has autographed copies of the album cover for sale on eBay; and he has used the connection to try to pick up women," the defendants said last year in a motion to dismiss the lawsuit.
Follow @edpettersson
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