A judge has thrown out a lawsuit against Nirvana made by the man who appeared as a naked baby on the cover of the band’s classic 1991 album Nevermind.
Judge Fernando Olguin dismissed the case in District Court on Monday after lawyers for Spencer Elden missed the deadline to file an opposition to the Nirvana estate’s request to dismiss last month.
Elden, 30, who claims he was the victim of child exploitation and the cover amounted to child porn, has until January 13 to refile.
The image was snapped in 1990 at the Pasadena aquatic center when Elden was four months old. His father Rick was an artist who also rigged special effects for Hollywood, and let his son appear as a model for the band’s new album.
At the time, Rick shared a studio in old town Pasadena with other artists to help pay the rent. Among them was photographer Kirk Weddle, who had the contract to photograph a baby underwater.
Rick told EchoPark: ‘Babies have a gag reflex.If you blow in their face, they hold their breath. I blew in Spencer’s face and put him in the water. Kirk was shooting 18 frames a second, so Spencer was in the water for about two seconds.’
The former baby model claims that appearing on the album cover caused ‘extreme and permanent emotional distress with physical manifestations’, as well as loss of education, wages and ‘enjoyment of life’.
Lawyers for the band’s estate – surviving members Dave Grohl and Krist Novoselic; Courtney Love, Kurt Cobain’s widow and executor; and Kirk Weddle, the photographer of the cover image – said Elden had ‘spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.”
Elden re-enacted the photo for money ‘many times,’ the lawyers said, even had the album title tattooed across his chest, appeared on a talk show wearing a self-parodying nude-colored onesie and had ‘used the connection to try to pick up women.’
The legal team said that the statute of limitations had expired and that Elden’s claims were too ‘absurd’ to even consider.
‘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,’ they said.
The latest: Nirvana and estate of Kurt Cobain are being sued by Spencer Elden, a man, now 30, who was the baby seen on the group’s Nevermind album cover in 1991 (pictured)
In the motion, attorney Bert Deixler argues that Elden has gotten the album’s name tattooed on his chest and used his celebrity to try to pick up women
Legendary: Nirvana became one of the synonymous bands of the ‘grunge movement,’ and was formed of Dave Grohl, the late Kurt Cobain and Krist Novoselic (pictured in 1993)
Since appearing on the cover, Elden has repeatedly recreated the image as both a teenager and an adult – on the 10th, 17th, 20th and 25th anniversaries of the album’s release – but in many interviews has shared his mixed feelings about it.
It is generally believed that the album cover is a commentary on capitalism – with the addition of a dollar bill on the end of a fishing hook the focus of the baby’s attention.
The band’s attorney Bert H.Deixler used the term ‘absurd’ in describing the Elden lawsuit’s contention that ‘the creation of the photograph for the album cover art entailed the sex trafficking of Elden when he was a baby.’
‘Elden’s claim that the photograph on the ‘Nevermind’ album cover is ‘child pornography’ is, on its face, not serious,’ the motion argues.
‘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.’
Deixler asked that Judge Olguin dismiss the case by January 20, 2022.
The motion was filed on behalf of defendants Dave Grohl, Krist Novoselic, Courtney Love (executor of Kirk Cobain’s estate), Kirk Weddle (the cover photographer), UMG Recordings and Nirvana LLC.
Deixler argued that the aforementioned merits of the case, or lack of them, shouldn’t even be at issue, and that the late date at which the lawsuit was filed is all that needs to be considered for a dismissal.
There is a 10-year statute of limitations on filing a lawsuit involving the child pornography alleged, starting with the date the plaintiff could reasonably have been aware of the pornographic use, or that they turned 18, according to Nirvana’s attorneys.
‘Elden’s claims fail, at the outset, because they are time-barred,’ he writes.
Shocking: In court documents, Elden said that ‘defendants failed to take reasonable steps to protect [him] and prevent his widespread sexual exploitation and image trafficking.’ Kurt Cobain is pictured above
Courtney Love, left,who was married to Kurt Cobain between 1992 and 1994, is among the 17 defendants which have been named in the suit; Dave Grohl, right, (pictured performing in Chicago last month) went onto form The Foo Fighters after Cobain’s death in 1994
‘Elden asserts two causes of action, one under the federal statute that permits victims of certain federal child pornography criminal offenses to sue for civil damages …and another under the federal statute that permits victims of certain trafficking crimes to sue for civil damages … Neither cause of action is timely.’
Elden’s lawyers at Marsh Law issued a response to Variety, writing in part: ‘In 1991, kampus terbaik di lampung Nirvana exploited Spencer’s inability to consent as an infant, and today, the band and Universal Music Group (UMG) continue to prioritize profits over our client Spencer Elden’s right to consent, to have privacy, and to feel dignity.’
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‘Nirvana and UMG’s motion to dismiss focuses on their past conduct and ignores their ongoing distribution, especially with the 30-year ‘Nevermind’ anniversary and profit margins.’
The motion cites occasions on which Elden or his father seemed to revel in media attention for the cover, as recently as a 2015 Guardian interview.
‘It is a weird thing …being part of such a culturally iconic image. But it’s always been a positive thing and opened doors for me,’ said Elden of the photograph.
Vast sum: Elden is asking for $150,000 from each of 17 defendants named in the suit, which could total around $2.5 million (Nirvana are pictured performing)
‘I might have one of the most famous penises in the music industry, but no one would ever know that to look at me.Sooner or later, I want to create a print of a real-deal re-enactment shot, completely naked. Why not? I think it would be fun.’
The filing then goes on to cite other interviews in which Elden had complained about not being properly compensated for the iconic image while everyone else ‘involved in the album has tons and tons of money.’
While the extremely low compensation for the original shoot has been raised as an issue, it was not the basis of Elden’s lawsuit.
As part of its response, Marsh Law said in its statement: ‘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.’
Marsh Law went on to say that the statute of limitations cited by Nirvana’s lawyers is irrelevant as long as the image in question continues to be disseminated.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.’
In interviews with Variety and other publications this year, Elden’s lawyers have said that victims of child pornography or other kinds of abuse often take decades to come to terms with the fact that they were abused, and that their client is no different in this regard and should not be held to earlier statements in which he expressed positive or ambivalent feelings about the ‘Nevermind’ cover.
‘I think when something like this happens, the only person who can understand what it’s like to be in Spencer’s shoes is Spencer,’ one of his attorneys, Maggie Mabie, told Variety in August.
‘That being said, these are not new feelings.He has always felt invaded. Even as a child, Spencer expressed that this was uncomfortable, and he doesn’t like the way that this puts him in a place where he really can’t (protest) that it’s an invasion of his own privacy, because people come to defend the band, as opposed to protect Spencer.’
‘So the reason it comes now, as opposed to times before, is really because, while Spencer’s had this cause of action all the while, it takes a very long time when you are a victim of these kinds of image abuse crimes to really understand how you’ve been damaged.And it takes a quite a long time for a lawsuit like this to develop when you have sophisticated defendants.’
‘This juncture in his life has probably come about because he’s become an adult, and he’s understanding the way that this has affected him.When you’re a kid, your brain isn’t developed enough to fully understand your trauma.’
An attorney for Nirvana’s surviving members argue that, among other perks, Elden has recreated the iconic cover ‘multiple times’ for money
In his claim, Eldon said Nirvana and the estate of Kurt Cobain ‘trafficked’ his to mark the album’s 25th Anniversary, Spencer said:
‘It’s hard not to get upset when you hear how much money was involved.
‘[When] I go to a baseball game and think about it: ”Man, everybody at this baseball game has probably seen my little baby penis,” I feel like I got part of my human rights revoked.’
Elden added at the time that he attempted to reach out to the band, but never received a response.
Nevermind famous ushered in the grunge era and sold more than 30 million albums for Geffen Records.
The album was also nominated for a Grammy Award for Best Alternative Music Performance, and it’s title single Smells Like Teen Spirit earned nods for Best Rock Song and Best Hard Rock Performance.
Nirvana went onto release their third album, In Utero, in 1993, and the following year they found success once again with their acclaimed album based on their MTV Unplugged set in New York.
The band performed their final concert as a trio in Munich in Germany on March 1, 1994, and just three days later Cobain’s wife Courtney Love found the musician unconscious in their hotel room, forcing the rest of the tour to be cancelled.
In the latter weeks Cobain’s struggles with heroin addiction began to resurface, and a week after leaving rehab, on April 8, 1994, he was found dead of a self-inflicted shotgun wound at his home in Seattle.
Soon after Cobain’s death Nirvana disbanded, and Grohl has gone onto form the band Foo Fighters.
