One Year Ago Today (September 5, 2022)… A Los Angeles man, who was famously pictured as a naked baby over 30 years ago on the cover of Nirvana’s groundbreaking album “Nevermind,” has filed a notice of intent to appeal a judge’s decision to dismiss his lawsuit against the band and others for alleged child sexual exploitation.
The lawsuit was thrown out by U.S. District Judge Fernando Olguin on Friday because it was filed in L.A. federal court after the statute of limitations had expired, according to the judge’s order.
Spencer Elden, now 31, claims that the group, record companies, and art directors caused him lifelong harm by distributing his image worldwide.
The lawsuit argues that the cover image implies a “sex worker grabbing for a dollar bill.”
Elden’s lawyers have filed an appeal with the U.S. 9th Circuit Court of Appeals.
The initial lawsuit, filed in August 2021, was brought under a federal statute that allows victims of child pornography to seek damages for violations of child porn laws.
“Spencer’s victimization as a child remains frozen in time,” said Margaret Mabie, one of Elden’s lawyers, in a statement provided to City News Service on Monday. “His childhood self continues to be invaded and he will be repeatedly victimized as long as the ‘Nevermind’ cover continues to be distributed.”
Nirvana’s attorney, Bert H. Deixler, has not yet responded to a request for comment.
According to the lawsuit, the defendants “knowingly produced, possessed, and advertised commercial child pornography featuring Spencer, and they knowingly received value in exchange for doing so… Despite this knowledge, defendants failed to protect Spencer and prevent his widespread sexual exploitation and image trafficking.”
Elden’s parents never gave permission for the photos of their 4-month-old baby taken in a Pasadena aquatic center in 1990 to be used, and Elden received no compensation, according to the lawsuit.
However, defendants including Courtney Love, the executor of late Nirvana leader Kurt Cobain’s estate, argued in court papers that Elden appeared to enjoy being the “Nirvana baby” and has even gotten a “Nevermind” tattoo.
“He has re-enacted the photograph for a fee on numerous occasions, he has tattooed the album title 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,” according to a motion to dismiss filed by the defense.
Elden is seeking a jury trial and $150,000 from each of the 15 defendants, or unspecified damages to be determined.
The cover of “Nevermind,” released in 1991 by the Geffen/UMG label, features a naked baby swimming underwater, reaching for a fishhook with a dollar bill attached. It is one of the most iconic album covers in rock history.
“Elden’s suit alleges that photographer Kirk Weddle deliberately provoked his ‘gag reflex’ before submerging him underwater in poses that highlighted and emphasized his exposed genitals,” the lawsuit states.
Elden argues that the defendants “used child pornography featuring Spencer as an essential element of a record promotion scheme commonly employed in the music industry to attract attention, where album covers depicted children in a sexually provocative manner to gain fame, boost sales, and generate media coverage and critical reviews.”
As a result, Elden claims he has suffered and will continue to suffer lifelong harm.
Geffen Records initially shipped 46,521 copies of “Nevermind” to retailers, with hopes of eventually selling 200,000 copies. The album, a defining work of the grunge era, went on to sell over 30 million copies.
In an interview last year with the Vulture website, former Nirvana drummer Dave Grohl commented on Elden’s lawsuit: “Listen, he’s got a ‘Nevermind’ tattoo. I don’t.”
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