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Nirvana seek dismissal of Nevermind baby lawsuit

By Chris Cooke | Published on Tuesday 28 December 2021

Nirvana are now formally seeking to dismiss the lawsuit filed earlier this year by Spencer Elden, the man who appears as a baby on the iconic cover of their album ‘Nevermind’.

In a legal filing submitted with the court just before the Christmas break, the band claim that Elden’s legal arguments are without merit, although they specifically seek dismissal based on the statute of limitations.

Elden sued the band, their label and other people involved in creating the artwork back in 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”.

Among other things, the band’s formal response to the lawsuit notes that – until recently – Elden was blasé or, indeed, actively positive about appearing on the ‘Nevermind’ album artwork. Indeed, says the band’s legal filing, Elden “has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby’”.

It goes on: “He has re-enacted 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 new claim that the use of Elden’s photograph on the ‘Nevermind’ artwork constitutes child pornography is simply “not serious”, the band’s lawyers add. “A brief examination of the photograph, or Elden’s own conduct – not to mention the photograph’s presence in the homes of millions of Americans who, on Elden’s theory, are guilty of felony possession of child pornography – makes that clear”.

All that said, the legal filing goes on, Elden’s lawsuit should be dismissed without even considering the merits – or not – of his legal arguments because of the statute of limitations. Which is to say, he left it too long to go legal.

With the specific laws Nirvana et al 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 within ten years of becoming aware of the alleged pornographic use of the image or when he turned eighteen. Elden’s eighteenth birthday was in 2009.

Legal reps for Elden have already responded to the motion for dismissal, countering that the statute of limitations argument fails because Nirvana and their business partners continue to distribute and profit from the ‘Nevermind’ album, which is still being sold with Elden’s photo on the cover. Indeed, a 30th anniversary edition of the album was released, with the original cover art, even after Elden’s lawsuit had been filed.

Insisting that the ‘Nevermind’ artwork passes the legal test for child pornography under American law, Elden’s lawyers tell Variety: “Child pornography is a ‘forever crime’ – any distribution of or profits earned from any sexually explicit image of a child not only creates longstanding liability but it also breeds lifelong trauma”.

To that end, they add, US law “makes it clear that the statute of limitations restarts claims each time [Nirvana and their label] reproduces, distributes, or possesses Spencer’s Nirvana cover image”.

“Similarly, the statute of limitations … claims restart each time any defendant receives any ‘thing of value’ for the image. For the argument on the statute of limitations to hold water, Nirvana and [their label] would have had to cease distribution of, and forfeit profits from, the image in August of 2011”.

Nirvana’s legal filing seeks a decision on the motion for dismissal from the judge overseeing the case by 20 Jan.