Why Nirvana is facing trouble again over iconic naked baby album cover

Never mind what a US judge said last year – another US court has revived a child sexual exploitation lawsuit against Nirvana. The suit comes from a man who appeared on the cover of the grunge band’s seminal 1991 album Nevermind as a naked infant. The development comes more than a year after another judge dismissed the claim by Spencer Elden – who alleges he has claimed he has suffered ‘permanent harm’ as a result of the album cover. Let’s take a closer look at the row: What happened? In 1991, Nirvana, fronted by crooner Kurt Cobain, released its landmark second album Nevermind. As per Billboard, the album reached No 1 on the US Billboard 200 in January 1992. It was on the chart for 554 weeks and ultimately sold more than 30 million copies. The album, which made the group and Kobain in particular the face of a new generation, had on its cover an image that would become truly iconic – a naked baby swimming after a US dollar on a fishhook.

As per the New York Times, Elden’s parents were paid $200 for the image.

Many considered the image a critique of the capitalist American society and a social commentary on greed. But Elden, now 32, disagreed. In August 2021, Elden filed the lawsuit against the band in California federal court. As per Sky News, Elden sought $150,000 in damages. In it, he claimed he suffered ‘lifelong damages’ as the band and others profited off the image. This, even as Elden has participated in photoshoots over the years recreating the image. The suit said that even though no criminal charges were ever sought, the image violated federal laws on child sexual abuse material. “Spencer’s true identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day,” the suit stated as per Billboard. [caption id=“attachment_13536052” align=“alignnone” width=“640”] Spencer Elden posed with the Nevermind cover, featuring him as a naked underwater baby, on the 25th anniversary of the Nirvana album[/caption] As per Sky News, the lawsuit claimed the cover made Elden look like a ‘sex worker.’ It also claimed the band did not follow through on a vow to cover Elden’s exposed genitals. As per The New York Times, the suit claimed Elden suffered emotional distress and a “lifelong loss of income-earning capacity” as a result of being associated with the image. Nirvana’s lawyers file motion to dismiss In December 2021, Nirvana’s attorneys filed a motion to dismiss. They argued that the suit was filed well past the 10-year statute of limitations of one of the laws used as a cause of action. They also said another law it cites wasn’t enacted until 2003 and was not retroactive. “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,” the suit claimed as per Billboard. He has been fully aware of the facts of both the supposed ‘violation’ and ‘injury’ for decades.”

The motion said 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 suit alleged. Then, in September 2022, US district judge Fernando Olguin dismissed the lawsuit. The eight-page ruling, which cited the statute of limitations, said Elden had waited too long to file his motion. “We are pleased that this meritless case has been brought to a speedy final conclusion,” a lawyer for Nirvana told Reuters. Elden’s lawyers at the time vowed to appeal the ruling. [caption id=“attachment_13536082” align=“alignnone” width=“640”] Kurt Cobain with his acoustic guitar during the MTV Unplugged session. Twitter[/caption] “The ‘Nevermind’ cover was created at time when Spencer was a baby and it is impossible for him to age out of this victimization while his image remains in distribution,” Elden’s lawyer told Rolling Stone. As per Rolling Stone, Elden in 2022 filed an amended lawsuit. The suit named Nirvarana and surviving Nirvana members Dave Grohl and Krist Novoselic, photographer Kirk Weddle, Universal Music Group, Geffen Records, MCA Records, Courtney Love – the executor of Kurt Cobain’s estate –as defendants. Weddle took the photo that depicted Elden swimming naked toward a dollar bill pierced on a fish hook. at the Pasadena Aquatic Centre in California. Elden claimed they “knowingly” continued to reproduce, distribute and promote the album cover with his image in the 10 years leading up to his filing, including through a 30th anniversary reissue of the album in 2021 that “continues to feature a lascivious exhibition of Spencer’s genitals on the cover.” Appeals court revives lawsuit Thursday’s decision by a three-judge panel of the Ninth US Circuit Court of Appeals in California reversed that ruling and sent the case back to the lower court. The appellate panel found that each republication of an image “may constitute a new personal injury” with a new deadline and cited the image’s appearance on a 30th anniversary reissue of Nevermind in 2021.

The court, however, did not address whether the cover of Nevermind constitutes child pornography.

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“The question whether the ‘Nevermind’ album cover meets the definition of child pornography is not at issue in this appeal,” the court wrote, according to The New York Times. “Like victims of defamation, victims of child pornography may suffer a new injury upon the republication of the pornographic material,” the court decision further read, as per Rolling Stone. “Accordingly, we conclude that each republication of child pornography can constitute a new personal injury analogous to injuries caused by defamation and other dignitary torts. This conclusion is consistent with the Supreme Court’s view that ‘every viewing of child pornography is a repetition of the victim’s abuse.’” Elden’s lawyer told Billboard, “Spencer is very pleased with the decision and looks forward to having his day in court. The decision is important for all child pornography victims.” In an email to The Associated Press, Nirvana attorney Bert Deixler called the ruling a “procedural setback.” “We will defend this meritless case with vigour and expect to prevail,” he wrote. With inputs from agencies