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Spencer Elden appeals ruling in Nevermind artwork case

By Chris Cooke | Published on Wednesday 7 September 2022

The man who, as a baby, appeared nude on the famous cover of Nirvana’s ‘Nevermind’ album is appealing the recent dismissal of his lawsuit in relation to the artwork.

Spencer Elden sued Nirvana, their label and other people involved in creating the ‘Nevermind’ cover in August 2021. 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”.

The various defendants in the case have argued that Elden has previously spoken positively about appearing in the artwork and repeatedly recreated the image as a teenager and adult, albeit wearing shorts. Though they actually managed to get the lawsuit dismissed on the basis Elden had left it too late to sue.

With the specific laws Nirvana et al were 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. So the deadline for filing the lawsuit was 2019.

Elden’s lawyers initially missed a deadline to answer those claims, which resulted in the lawsuit being dismissed but with the option to refile. In their amended lawsuit they argued that the statute of limitations point should be rejected because Nirvana and their label continue to distribute ‘Nevermind’ with Elden’s image on it, meaning that they continue to harm their client even today.

But last week the judge hearing the case rejected those arguments and declined to allow Elden to submit another amended lawsuit. However, Elden’s team are now appealing that ruling, standing by their interpretation of the relevant statute of limitations in cases like this.

They say in a statement that the judge’s ruling last week was based on “a misunderstanding of the statute of limitations”, and that the judgement “contravenes over fifteen years of well-settled precedent and the legislature’s intended purpose of the law”.

They add: “Quite simply, under the statute and the case law the ongoing distribution of Spencer’s child pornography on the ‘Nevermind’ album cover repeatedly violates the baby depicted on the cover even though he is now all grown up”.

“The ‘Nevermind’ cover was created at time when Spencer was a baby”, they go on, “and it is impossible for him to age out of this victimisation while his image remains in distribution”.

According to CBS, one of Elden’s attorneys, Bob Lewis, has also responded to the other key argument from the Nirvana side, ie that Elden has previously spoken positively of the artwork and recreated the image, and that that contradicts his current claim that his appearance on the album cover caused him harm.

But Lewis told ‘CBS MoneyWatch’ that this behaviour is “consistent with how sex abuse victims deal with trauma”. He added: “They oftentimes will embrace their abuser for quite some time, so it’s not uncommon for someone in his situation to be confused about what happened to him and not know exactly how to handle it”.

“But in recent years”, Lewis added, “he’s come to terms with that and understands that having his pictures published like this has done him great harm, so we’re suing to prevent that”.

And so the ‘Nevermind’ artwork dispute continues.