Nirvana Lawyer Seeks Dismissal Of 'Absurd' 'Nevermind' Baby Lawsuit
By Katrina Nattress
December 23, 2021
Over the summer, Spencer Elden — known as the naked baby on Nirvana's Nevermind cover — filed a lawsuit claiming that he “has suffered and will continue to suffer lifelong damages” from the image and alleged that it was child pornography. The band's surviving members have, for the most part, not addressed the legal battle; however, as Billboard reports, Nirvana's attorney Bert H. Deixler filed a motion to dismiss the "absurd" suit because its statute of limitations has long since expired.
“Elden has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby,’” the filing states.
“The Nevermind cover photograph was taken in 1991. It was world-famous by no later than 1992,” it added. “Long before 2011, as Elden has pled, Elden knew about the photograph, and knew that he (and not someone else) was the baby in the photograph. He has been fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades.”
It also argued that the child pornography claims are meritless: “Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious. 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.”
In a statement made to Variety, the lawyer also pointed out that Elden "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.”
Elden's legal team issued a response to Deixler's motion, writing: “What we cannot continue to ignore is that the image of Elden, at four months old, is actively distributed and constitutes the legal definition of child pornography according to the Dost factors. 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. This is common for all of our clients who are victims of actively traded child pornography, regardless of how long ago the image was created.”
In their view, federal law “makes it clear that the statute of limitations restarts claims each time UMG 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 UMG would have had to cease distribution of, and forfeit profits from, the image in August of 2011. They are welcomed to do so today forward.”
Nevermind was recently reissued for its 30th anniversary and didn't censor Elden's genitals, which was something the original suit requested. Elden, who is now 30 years old, is also seeking $150,000 from each of the 15 defendants listed, which includes all of Nirvana's surviving members, Kurt Cobain's estate, the band's record label and the cover art photographer.