Nirvana attorneys seek dismissal of ‘Nevermind’ child porn lawsuit, calling it too late and too ‘absurd’

LOS ANGELES (Variety.com) — Attorneys for the members of Nirvana have asked a judge to dismiss a lawsuit filed in August by the man who was the “naked baby” on the cover of the 1991 “Nevermind” album, on the basis that the legal arguments that the image constitutes child pornography are decades too late as well as too silly.

The motion was filed Wednesday in U.S. District Court on behalf of defendants Dave Grohl, Krist Novoselic, Courtney Love (executor of the Kirk Cobain estate), Kirk Weddle (the cover photographer), UMG Recordings and Nirvana LLC. Submitted by Bert H. Deixler, it asks for judge Fernando M. Olguin to rule on their request to have the case dismissed on Jan. 20, 2022.

The filing says that plaintiff Spencer Elden, who was photographed in a Pasadena swimming pool at the age of 4 months and is now 30, only registered major objections to the photo recently. According to Nirvana’s reps, Elden “has spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.’ He 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.”

The attorneys continue: “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.”

But then Deixler argues 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 lawyers at Marsh Law issued a response to Variety, writing in part: “In 1991, 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. 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 album was recently reissued in multiple configurations without the genitalia on the cover redacted, as had been one of the requests in Elden’s August lawsuit.)

The Nirvana attorneys’ motion says “there is no doubt that Elden’s claims will fail on the merits. This Motion, however, does not address the merits. Rather, it addresses a separate problem. Elden’s claims fail, at the outset, because they are time-barred. 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. The Section 2255 claim has a ten-year limitations period and cannot reach an injury that Elden knew about before 2011.”

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.”

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 in which Elden was quoted as saying, “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. … 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.”