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Nevermind baby re-files child pornography lawsuit against Nirvana

By Chris Cooke | Published on Friday 14 January 2022

The man who appeared, as a baby, on the famous cover of Nirvana’s ‘Nevermind’ album has re-filed his litigation in relation to the artwork. And with the band arguing that Spencer Elden has left it too late to sue because of a statute of limitations, the new filing goes to great lengths to stress that Elden has continued to suffer as a result of the ongoing distribution of the artwork over the last decade.

Elden sued Nirvana, their label and other people involved in creating the ‘Nevermind’ artwork last August. Claiming that Elden’s guardians did not know how the nude baby photo would be used when it was originally taken, the lawsuit said that the defendants “knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so”.

Nirvana and the other defendants subsequently sought to have the case dismissed. Although – while also arguing that Elden’s lawsuit had no merit – core to the motion for dismissal were timings. With the specific laws they are accused of violating, there is a ten year statute of limitations. That doesn’t mean Elden would have had to sue within ten years of the photograph being taken, but – technically speaking – he should have gone legal within ten years of his eighteenth birthday, which was in 2009.

The motion for dismissal was filed just before Christmas. With a 20 Jan hearing scheduled in to discuss the case, the Elden side was meant to formally respond to that motion by 30 Dec.

However, they failed to do so and – as a result – the judge went ahead and granted the defendants’ motion. But with the add-on that Elden could still re-file his lawsuit, and in doing so respond to the arguments put forward by Nirvana et al regarding the statute of limitations. Which is what he and his legal team did earlier this week.

Lawyers working for Elden had already indicated in statements to various media how they would respond to the statute of limitations argument – basically that Nirvana and their business partners continue to exploit ‘Nevermind’ with its original artwork, including via a 30th anniversary edition last year. Therefore Elden had continued to suffer over the last ten years, within the statute of limitations. And that argument is presented in the new legal filing.

“Although the image of Spencer on the ‘Nevermind’ album cover was created over 30 years ago”, it says, “during the ten years preceding the filing of this action and since, Nirvana LLC, Universal Music Group Inc, UMG Recordings Inc, The David Geffen Company, Geffen Records, MCA Records, Courtney Love as the executor for the estate of Kurt Cobain, Kirk Weddle, Krist Novoselic and David Grohl continued to knowingly possess, transport, reproduce, advertise, promote, present, distribute, provide, and obtain the commercial child pornography on the cover of Nirvana’s ‘Nevermind’ album depicting Spencer, all in violation of the [previously cited] criminal statutes”.

Specifically noting that recent re-issue of the album, it adds: “For example, in September 2021, to celebrate the 30th anniversary of Nirvana’s ‘Nevermind’ album’s release, the defendants re-released the ‘Nevermind’ album which continues to feature a lascivious exhibition of Spencer’s genitals on the cover. Because ‘each possession of child pornography contributes to the conduct that indisputably causes harm to the victims’, Spencer’s harm is ongoing and is ‘directly attributable’ to each defendant’s conduct as alleged herein”.

Nirvana et al are yet to respond to the latest filing.