Nevermind! Spencer Elden's lawsuit of child pornography against Nirvana dismissed: All you need to know about the case

A federal judge has dismissed the lawsuit of a 30-year-old man, who alleged that the image of him nude as a four-month-old on the 1991 cover of Nirvana’s Nevermind album is child pornography.

Judge Fernando M Olguin on Monday granted a motion to dismiss the suit from the defendants, who include surviving Nirvana members Dave Grohl and Krist Novoselic, and the estate of Kurt Cobain, but left the door open for plaintiff Spencer Elden to refile an amended version.

The dismissal came after Elden’s attorneys did not file an opposition to the defendants’ motion to dismiss by a 30 December deadline. The attorneys declined comment Tuesday.

The lawsuit, filed in August in federal court in California, said that Elden had suffered “lifelong damages” as the band and others profited from the ubiquitous image of him naked underwater appearing to swim after a dollar bill on a fish hook.

The motion to dismiss filed 22 December by Nirvana’s attorneys argues that the suit was filed well past the 10-year statute of limitations of one of the laws used as a cause of action, and that another law it cites was not enacted until 2003, and was not retroactive.

The motion says the lawsuit is “on its face, not serious,” and Elden’s conduct reflects that. “Elden has spent three decades profiting from his celebrity as the self-anointed 'Nirvana Baby,'” the document says. “He has reenacted 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-coloured 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 judge gave Elden’s attorneys until 27 January to file an amended complaint that addresses the issues raised in the defendants’ motion, or the suit will be more definitively dismissed.

One of Elden’s attorneys, Maggie Mabie, told The Associated Press in August that he filed the lawsuit when he did because he “finally has the courage to hold these actors accountable.”

Mabie said despite the photo being 30 years old, the lawsuit was within the statute of limitations of federal child pornography law for several reasons, including the fact that the image is still in circulation and earning money.

The suit sought at least $150,000 from each of more than a dozen defendants, including the record labels involved in the release and re-release of Nevermind, and cover photographer Kirk Weddle.

Elden’s father was a friend of Weddle, who took pictures of several swimming babies in several scenarios at the Rose Bowl Aquatic Center in Pasadena, California.

When the photo was shot, Nirvana was a little-known band with no sense they were making a generation-defining album in Nevermind, their first major label release, whose songs included 'Smells Like Teen Spirit,' 'Come as You Are,' and 'Lithium.' Cobain died in 1994.

The photo of Elden was picked from among dozens of pictures of babies Weddle photographed for the album cover, which Cobain envisioned showing a baby underwater. Weddle paid Elden’s parents $200 for the picture, which was later altered to show the baby chasing a dollar, dangling from a fishhook.

In the decades that followed, Elden appeared to celebrate his part in the classic cover, recreating the moment for the 10th, 17th, 20th, and 25th anniversaries of the album, though not naked. “It’s cool but weird to be part of something so important that I don’t even remember,” he said in 2016 in an interview with The New York Post, in which he posed holding the album cover at 25.

Elden Spencer as a naked underwater baby in the cover of Nirvana's 1991 album Nevermind

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What is the lawsuit about?

• Now, however, Elden, 30, has filed a federal lawsuit against the estate of Kurt Cobain, the musician’s former bandmates, David Grohl and Krist Novoselic, and Cobain’s widow, Courtney Love, among other parties.
• He claimed that they, along with Geffen Records, which released Nevermind, profited from his naked image. It is one of the bestselling records of all time, with at least 30 million copies sold worldwide.
• The lawsuit said that Elden is seeking $150,000 from each of the 15 people and companies named in the complaint, including Kurt Weddle, the photographer who took the picture. Weddle did not respond to messages requesting comment.
• Elden is “asking for Nirvana to do what Nirvana should have done 30 years ago, and redact the images of his genitalia from the album cover,” Mabie said.

Why is Elden suing now?

• Elden, an artist living in Los Angeles County, has gone to therapy for years to work through how the album cover affected him, said Maggie Mabie, one of his lawyers. “He hasn’t met anyone who hasn’t seen his genitalia,” she said. “It's a constant reminder that he has no privacy. His privacy is worthless to the world.”
• “Defendants knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so,” according to the lawsuit, which was filed Tuesday in federal court in California.
• Elden suffered “permanent harm” because of his association with the album, including emotional distress and a “lifelong loss of income-earning capacity.” The lawsuit did not provide details about the losses, and said they would be disclosed at trial.
• “They were trying to create controversy because controversy sells,” Mabie said. “The point was not just to create a menacing image but to cross the line, and they did so in a way that exposed Spencer so that they could profit off of it.”
• She said her client sometimes agreed when the band, media outlets, and fans asked him to recreate the photo as an adult, but he eventually realised that this only resulted in the “image of him as a baby being further exploited.”
• Mabie said his parents never authorised consent for how the images would be used.
• She noted that Cobain once suggested putting a sticker over the baby’s genitals after there was pushback to the idea for the cover. The performer, who died in 1994, said the sticker should read: “If you’re offended by this, you must be a closet pedophile.”

What have both parties said on the case?

• The representatives for Cobain’s estate did not immediately respond to a message seeking comment.
• Representatives for Grohl, Love, and Geffen Records, which is now part of Universal Music Group, did not respond to messages.
• Elden, who declined to comment on his suit, said in a short documentary in 2015 that the album cover had “opened doors” for him. For example, he worked with Shepard Fairey, the artist who was sued by The Associated Press for using an image of Barack Obama for his piece “Hope.”

Changing stance of Elden on his photograph

• Over the years, Eden has expressed ambivalence about the cover.
• “It’d be nice to have a quarter for every person that has seen my baby penis,” he said in a New York Post interview in 2016.
• In a different interview that year, he said he was angry that people still talked about it. “Recently I’ve been thinking, ‘What if I wasn’t OK with my freaking penis being shown to everybody?’ I didn’t really have a choice,” Elden said to GQ Australia.
• He said that his feelings about the cover began to change “just a few months ago, when I was reaching out to Nirvana to see if they wanted to be part of my art show.” Elden said he was referred to managers and lawyers. “Why am I still on their cover if I’m not that big of a deal?” he said.
• Mabie said that Elden has long felt discomfort over the images and had expressed it in even earlier interviews when he was a teenager.
• “Mr Elden never consented to the use of this image or the display of these images,” she said. “Even though he recreated the images later on in life, he was clothed and he was an adult and these were very different circumstances.”

Is it a pornography case in the eyes of the law?

• "This lawsuit is not a typical child pornography case," said Mary Graw Leary, a professor at the Columbus School of Law at the Catholic University of America.
• “Nudity of a child alone is not the definition of pornography,” she said. “The typical child pornography that is being seen in law enforcement and pursued in the courts can be violent. The children are young and it is very graphic.”
• But there are factors under federal law that allow a judge or a jury to determine whether a photo of a minor “constitutes a lascivious exhibition of the genitals,” including if they were the focal point of a photo, Graw Leary said. That part of the law “gives a bit more discretion to the court,” she said. “It’s not a case with easy answers.”
• Elden’s past comments about the cover should not undermine his current claim that he was a victim of child pornography, she added.
• The law does not pick between children who immediately denounce their abusers and children who initially were dismissive about what happened to them, she said. “We don’t want to be in a position where we’re only going to consider one case criminal because in the other, the child didn’t think it was a big deal at the time,” Graw Leary said. “We don’t only protect certain kids.”

Maria Cramer c.2021 The New York Times Company

With inputs from The Associated Press.